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excuse, but do not justify, may be proved in mitigation. So, in trover, the defendant may show that he has returned the goods in defamation that the plaintiff had previously defamed the defendant, and that the latter knew it when he published the slander 2 or that (under 6 & 7 Vict. c. 96, s. 1) the defendant had offered an apology before action brought, or as soon as he had an opportunity: or even, it is said, that the slander was supported by rumours in the neighbourhood concerning the plaintiff: but this doctrine is very doubtful, and can only be considered applicable to particular cases. 3 In seduction, the defendant may prove that the daughter had had intercourse with other men, or that she had been in the habit of using loose language.5 So, in trespass for adultery, the defendant may show the brutality, neglect, or infidelity of the plaintiff towards the wife :6 or the previous, but not the subsequent, loose conduct of the latter."



The superior courts may and will in every case grant a new trial where the damages of the first trial are excessive: but, especially in torts, the court will not interfere unless the damages are clearly very excessive; nor unless a strong case be made out that the jury have taken a perverted view of the matter.8 Thus, it has been held that 300l. are not necessarily excessive damages for an imprisonment of a few hours:9 nor 2001.

1 1 Roll. Abr. 5.

2 Watts v. Fraser, 7 A. & E. 223.

3 Rosc. N. P. 442.

4 Dodd v. Norris, 3 Camp. 519.

5 Carpenter v. Wall, 11 A. & E. 803.

• Bromley v. Wallace, 4 Esp. 237.

7 Elsam v. Faucett, 2 Esp. 562.

8 Tindal, C. J., 1 M. & G. 225.

9 Lieman v. Allen, 2 Wils. 160.

in assault and battery, where both parties were gentlemen.1 So, 3500l. in a breach of promise of marriage against an attorney have been held to be not excessive; 2 and generally, a new trial, on the ground of the damages being excessive, will be refused, unless they are so large as to lead the court to infer that the jury were influenced by improper motives, or a misconception of facts.3

It is the general practice not to grant a new trial on the ground that the damages are trifling and inadequate.


17 & 18 VICT. c. 125, s. 1.

By this section it is substantially enacted that parties to a cause may, by consent in writing, and leave 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." Parties, therefore, who avail themselves of this section will have no ground for disputing the measure of damages as adopted by a judge and its probable effect will be to extend, to a still wider extent, the equitable principles by which damages have been always measured.

1 Grey v. Grant, 2 Wils. 252.

2 Wood v. Hurd, 2 Bing. N. C. 166. 3 Gough v. Farr, 1 Y. & J. 477.

Those principles have been now selected and illustrated according to the best of the present writer's judgment. It is impossible to exhaust such a subject in a treatise which is confined to practical and general principles but something, it is hoped, has been done in this chapter to act up to the spirit of its object.




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;1 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 professed to express all that bears substantially on the contract. It is therefore a fundamental principle that

1 Supra, Chap. 3, pp. 36 to 40.

although oral evidence may be given to explain such a written contract, it cannot be given to vary it. 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. Neither can he be examined as to its contents, but the whole letter must be read. 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.

But where the writing is merely in the nature of a personal memorandum, which has been drawn up by a witness for his own convenience, it is inadmissible as a writing, but may be used by the witness to refresh his memory. Thus, letters to a party are only received on the presumption that, by answering them, or acting on them, or even by the bare act of receiving them, he has connected them with the controversy between himself and the writer. But a mere written statement, not made on oath by one party, and not shown to have come to the knowledge and to have been recognised or adopted in some way by another party, is manifestly no evidence against such party.

It is on this principle that even depositions which have been taken on oath in the presence of a party whom they affect and who has had an opportunity of cross-examining, are inadmissible as long as the deponent can be produced at trial. Such depositions are merely personal statements which have not been in any way recognised, or acquiesced in, by the party against whom they are tendered. They contain none of the elements of a contract, or an admission, and therefore, in this case, the deponent must state his

1 Queen's Case, 2 B. & B. 286.

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