it, and the property was never found; it was held by the twelve judges that not only the confession, but the fact of the prisoner's carrying the officer to the house as above mentioned was inadmissible in evidence. The confession, it was said by their Lordships, was excluded, because being made under the influence of a promise it could not be relied on, and the acts of the prisoner, under the same influence, not being confirmed by the finding of the property, were open to the same objection: The influence which might produce a groundless confession might also produce groundless conduct. Rex v. Jenkins, Russ. & Ry. C. C. R. 492.

A man's confession is only evidence against himself, and not Confession eviagainst his accomplices. Tong's case, Kelyng. 18. Hevey's case, dence against 1 Leach, 232. And where the confession was made before a ma- the party con gistrate in the presence and hearing of the accomplice, who did not fessing only, deny it, Mr. Justice Holroyd held, that these circumstances in the hearing although made were not evidence against the latter, and said that it had been of an accomso ruled by several of the judges in a similar case which had been plice, who did tried at Chester. Rex v. Appleby, 3 Stark. N. P. C. 33. (a) So not deny it. in Melen v. Andrews, Mood. & Malk. 336., which was an action for maliciously laying an information against the plaintiff before two magistrates, under stat. 7 & 8 G. 4. c. 30., after the information and the deposition of the defendant Andrews had been read, and it had been shewn on cross-examination that Melen had cross-examined Andrews, and had commented on his evidence, it was proposed for the defendant to inquire of the same witness what Checketts, another party examined on the same occasion, but not a party on this record, had stated; claiming to be entitled to do so on the ground that it was said in Melen's presence, who had the opportunity of cross-examining the witness, and observing on his testimony; a privilege which he used with reference to Andrews. But J. Parke J. rejected the evidence, and observed, " I think it is safer to refuse it, and to hold that the deposition of a witness, taken in a judicial proceeding, is not evidence on the ground that the party against whom it is sought to be read was present, and had the opportunity of cross-examining. It clearly would not be admissible against a third person, who merely happened to be present, and who, being a stranger to the matter under investigation, had not the right of interfering; and I think the same rule must apply here. It is true that the plaintiff might have cross-examined, or commented on the testimony; but still, in an investigation of this nature, there is a regularity of proceeding adopted which prevents the party from interposing when and how he pleases, as he would in a common conversation. The same inferences, therefore, cannot be drawn from his silence, or his conduct in this case, which generally may in that of a conversation in

(a) In an action of assault, the defendant offered evidence of what was said by the magistrate before whom the matter had been investigated, in the presence of both plaintiff and defendant; but Best C. J. refused to admit it; and he observed, that what was said by the defendant to the plaintiff was evidence, but not what was said by a third person; or if they drew any answer from the plaintiff, that made it evidence: And his lordship said, he remembered Gibbs C. J. making the same distinction: Child v. Grace, 2 Carr. & P. 193. As to when the declarations of one conspirator are evidence against all his comrades, see tit. Co. spiracy, Vol. III. (Criminal Law,) p. 180.

Whole of a con-
fession or ad-
mission must
be stated.

It must be all taken together.

his presence; and as it is only for the sake of these inferences that the conversation can ever be admitted, I think it is better to refuse the evidence now offered."

If the confession is not in writing, the whole of what the prisoner said must be fully stated, although it may happen that some part of it concerns other prisoners who are tried on the same indict. ment in such a case it is not possible to make any selection; for until the evidence has been heard, it cannot be known what it is, or to whom it relates; and all that can be done is, to direct the jury not to take into their consideration such parts as affect the other prisoners. 1 Phil. Ev. 108. (a) But a distinction might perhaps be made in this respect, in case the confession has been reduced into writing, if that part which relates to the other prisoners is capable of being separated and detached from the rest, and can be omitted without affecting in any degree the prisoner's narration against himself. 1 Phil. Ev. 108. (b)

If, on the part of the prosecution, a confession or admission of the defendant, made in the course of a conversation with a witness, be brought forward, the defendant has a right to lay before the court the whole of what was said in the same conversation; not only so much as may explain or qualify the matter introduced by the previous examination, but even matter not properly connected with the part introduced upon the previous examination, provided only that it relates to the subject-matter of the suit; because it would not be just to take part of a conversation as evidence against a party, without giving to the party at the same time the benefit of the entire residue of what he said on the same occasion: By Abbott C. J. in The Queen's case, 2 Brod. & Bing. 297.

"If a prosecutor uses the declaration of a prisoner, he must take the whole of it together, and cannot select one part and leave another; and if there be either no other evidence in the cause, or no other evidence incompatible with it, the declaration so adduced in evidence must be taken as true. But if, after the whole of the statement of the prisoner is given in evidence, the prosecutor is in a situation to contradict any part of it, he is at liberty to do so, and then the statement of the prisoner and the whole of the other evidence must be left to the jury for their consideration, precisely as in any other case, where one part of the evidence is contradictory to another." By Bosanquet Serj. in Rex v. Jones, 2 Carr & P.650.

So in a case before Mr. Baron Garrow, where the prisoner was indicted for a larceny, and in addition to evidence of the possession of the stolen goods, the counsel for the prosecution put in the prisoner's statement, made before the magistrate, in which the pri soner asserted that he had bought the goods, the learned baron is

(a) In Rex v. Hearne, 4 C. & P. 215., Littledale J. said, "The witness must mention the name; he is to tell us what the prisoner said; and if he left out the name, he would not do so. The prisoner did not say, another person;' and the witness must give us the conversation just as it occurred; but I shall tell the jury that it is not evidence against the other prisoner."

6

(b) But Littledale J., on more than one occasion, has ruled that the whole of a written confession of one prisoner must be read, though the name of the others are mentioned therein. In R. v. Fletcher, 4 C. & P. 250., that learned judge said, "There has been inuch doubt upon this point; and on one of the circuits the practice has been to omit the names. I have, however, considered it a good deal,

said to have directed an acquittal, saying, that if a prosecutor used a prisoner's statement, he must take the whole of it together. Ibid.

However, the true principle appears to be, that although the confession must be taken altogether, and is evidence for the prisoner as well as against him, still the jury may, if they think proper, believe the one part of it and disbelieve the other. Thus, in Rex v. Higgins, 3 C. & P. 603., the prisoner was charged with a larceny, in stealing two yards of woollen cloth, the property of John Cornock. It appeared that the prosecutor was at an inn at Berkeley, and that, having the piece of cloth with him, he left it on a chair in one of the rooms of the inn while he went out, and that on his return he missed the cloth. It was proved, that in about four hours after the loss of the cloth, the prisoner sold it at a place eight miles distant from Berkeley. The statement of the prisoner, made before the magistrate, was read as evidence on the part of the prosecution. In this the prisoner said, "that the cloth was honestly bought and paid for."— Mr. Justice J. Parke (in summing up). "In this case the prosecutor has given evidence of what the prisoner said before the magistrate. Now, what a prisoner says is not evidence, unless the prosecutor chooses to make it so, by using it as a part of his case against the prisoner; however, if the prosecutor makes the prisoner's declaration evidence, it then becomes evidence for the prisoner as well as against him; but still, like all evidence given in any case, it is for you to say whether you believe it. If you believe that the prisoner really bought and paid for this cloth, as he says he did, you ought to acquit him; but if, from his selling the cloth so very soon after it was lost, and that, too, at a distance of eight miles, you feel satisfied that the statement of his buying it is all false, then you must find him guilty." (See also Rex v. Clewes, 4 C. & P. 221., coram Littledale J.: Rex v. Steptoe, ibid. 397., coram Park J.)

So in a civil case, if a person says, "that he did owe a debt, but that he had paid it," such an admission would not be received as evidence to prove the debt, without being also evidence of the payment. Per Hale C. J. Anonymous case, cited 12 Vin. Abr. tit. Ev. A. 23. What he has said in his own favour may perhaps weigh very little with the jury, while his admission against himself may be conclusive; however, it is reasonable, that if any part of his statement is admitted in evidence, the whole should be admitted. (See also Smith v. Blandy, Ry. & Mood. N. P. C. 257.)

As analogous to the former part of this section, concerning Acts and deadmissions and confessions by the defendant himself, it may be clarations of coproper in this place to mention the subject of acts and declarations conspirators ard of co-conspirators and of agents. How far the acts and words of of agents. one conspirator are evidence against the others, will be found discussed in another part of this work -Vol. III. (Criminal Law,) tit. Conspiracy, p. 179, 180. (See also 2 Stark. Ev., tit.

and though my opinion was once different, I am now satisfied that the whole of the letter must be read." See also the same point ruled by the same Judge in R. v. Clewes, ibid. 221., and by Alderson J. in Rex v. Hall, Lewin. C. C. 110., and Denman C. J., Rex v. Foster, ibid. However, in Rex v. Barston, Lewin. C. C. 110., on Rex v. Fletcher being cited, J. Parke J. said, "I know that is Mr. Justice Littledale's opinion, but I do not like it. I do not think it the fair way."

Agent of defendant.

Conspiracy.) With respect to the statements and acts of agents, it was decided, on the impeachment of Ld. Melville, by the House of Lords, that a receipt given in the regular and official form by Mr. Douglas (who, it was proved, had been appointed by Ld. Melville to be his attorney, to transact the business of his office of treasurer of the navy, and to receive all necessary sums of money, and to sign receipts for the same), was admissible in evidence against Ld. Melville, to establish this single fact, that a person appointed by him, as his paymaster, did receive from the exchequer a certain sum of money in the ordinary course of business. 24 How. St. Tr. 746. In The Queen's case, 2 Brod. & Bing. 302., it was said by Abbott C. J., in delivering the opinion of the judges, that it would not be allowable on the part of the prosecution, to give evidence that an agent, who had been proved to have been employed by the defendant to procure evidence for the defence, but who had not been examined as a witness, offered a bribe to some third person, who also had not been examined. This was not the question proposed by the House of Lords to the judges, but the converse of it, considered by the Chief Agent of prose Justice, for the purpose of shewing the grounds of the determination of the judges. The actual question proposed for their consideration was, as to the competency of proving, on the trial of a criminal prosecution, certain acts supposed to have been done by the agent of the prosecutor. And they determined that similar proof, as to the conduct of the prosecutor's agent in offering a bribe, was inadmissible. The question, the Lord Chief Justice observed, regarded the act of an agent addressed to a person not examined as a witness in support of the indictment, the proffered proof not apparently connecting itself with any particular matter deposed by the witnesses who had been examined in support of the indictment, and leaving therefore those witnesses unaffected by the proposed proof, otherwise than by way of inference and conclusion. His Lordship concluded by observing, that notwithstanding the opinion he had delivered, he was by no means prepared to say, that in no case, and under no circumstances appearing at a trial, it might not be fit and proper for a judge to allow proof of this nature to be submitted for the consideration of a jury; and that the inclination of every judge was to admit, rather than exclude, the offered proof.

cutor.

Admission of

attorney before

A letter written to the plaintiff's attorney, before action brought, by the attorney who afterwards appears in the cause for the deaction brought. fendant, is not evidence of a fact admitted therein, without further proof that the defendant authorized the communication. Wagstaff v. Wilson, 4 B. & Adol. 339.

Examinations of prisoner be fore magistrate.

How proved.

The subject of the examination of prisoners before justices of the peace, under the provisions of the stat. 7 G. 4 c. 64. (repealing the former statutes of P. & M.), will be found at large in another volume of this work — Vol. III. (Criminal Law,) tit. Examination, p. 196. et seq.; and in the same place the authorities have been collected respecting the admissibility of such examinations in evidence against the prisoner at his trial.

It seems therefore only requisite in this place to mention some late decisions respecting the mode of proving such examinations. It is laid down by Ld. Hale, 2 P.C. 52. 284., that in proving examina

tions of prisoners and informations of witnesses taken before justices of the peace, oath is to be made in court by the justice or his clerk that the examinations or informations were truly taken. However, in practice, this doctrine does not appear to have been acted upon. Thus in Rex v. Isabella Hopes, 7 C. & P. 136., the examination was allowed by Vaughan and Patteson Js. to be proved by the constable, who swore that he heard the prisoner make her statement, and saw the magistrate take down in writing what she said; and that it was then read over to her by the magistrate, and she put her mark to it, after which he (the witness) put his name as attesting the mark, and the magistrate signed the examination as taken before him. So in Rex v. Foster, 7 C. & P. 148., on a trial before Bosanquet J. and Alderson B., it was proposed to read in evidence against the prisoner a statement made before the magistrate, and returned by him in writing. The only evidence in court, in addition to proof that it was the examination of the particular prisoner, was that ofa person who knew the magistrate's handwriting, by which the examination was authenticated. The counsel for the prisoner referred to the doctrine laid down by Ld. Hale on the subject. The judges intimated an opinion that the statement might be read on proof of the magistrate's handwriting, on the ground that the law required the magistrate to certify that it had been duly taken; and proving that he had signed it, was sufficient to shew that; and Mr. Baron Alderson likened it to the case of an affidavit, where proof of the magistrate's handwriting was evidence of the party's having been sworn. Their lordships, in reference to Ld. Hale's doctrine, said, it could not be intended that the magistrate or his clerk must be called, on account of their office; but that any one who could shew that the examination was duly taken would be sufficient.

But where, upon an indictment for murder, it was proposed to prove the prisoner's examination before the coroner, by evidence of the handwriting of the latter, and by calling a person who was present at the examination, it appearing that there were certain interlineations in the examinations, Ld. Lyndhurst said, that he thought the clerk who had taken down the examination ought to be called; and the evidence was withdrawn. Brogan's case, Lanc. Sum. ass. 1834, MS. Rosc. Cr. Ev. 49.

The provisions of the stat. 7 G. 4. c. 64., relating to the taking Depositions. of depositions of witnesses in criminal cases before Justices of the Peace and Coroners, are stated at large in a later part of this work -Vol. III. (Criminal Law,) tit. Examination, p. 196. et seq.; where also the authorities have been collected respecting the proper mode of taking such depositions and their admissibility in evidence at their trial.