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had, the policy would not have been underwritten. The jury, however found, against the witness's opinion, a verdict for the plaintiff. When his opinion was pressed, as a ground for a new trial, Lord Mansfield, in the name of the whole court, declared that the jury ought not to pay the least regard to it, because it was mere opinion and not evidence. The same doctrine is laid down in a case of Durrell v. Bederley, by Gibbs. C. J., though he received the evidence on great pressure. He said, 'The opinion of the underwriters on the materiality of facts and the effect they would have had upon the premium, is not admissible in evidence.' Lord Mansfield and Lord Kenyon discountenanced this evidence of opinion, and I think it ought not to be received. It is the province of a jury and not of individual underwriters to decide that facts ought to be communicated. It is not a question of science in which scientific men will mostly think alike, but a question of opinion, liable to be governed by fancy, and in which the diversity might be endless. Such evidence leads to nothing satisfactory and ought to be rejected."
It will appear from this judgment that the two rules, as stated above, are recognised and acted on universally; and that the only practical difficulty in applying them, exists in the question as to what is and what is not a subject of scientific inquiry. The inclination of modern authorities appears to be to enlarge the definition; and it is probable that if Carter v. Boehm, and Campbell v. Rickards were to be decided again, it would be held that the nature of mercantile traffic, and the principles of insurance in particular, are sufficiently recondite to entitle them to the privilege which was disallowed in those cases. And in Greville v. Chapman,2 which was an action for libel arising out of a racehorse transaction, it was held by Lord Denman himself, that a member of the jockey-club might be
1 1 Sm. L. C. 286 a., Rickards v. Murdock, 10 B. & C. 527. 2 5 Q. B. 731.
asked as a witness, whether he did not consider a certain course of conduct to be dishonourable.
Ancient writings may be proved by a skilled witness to whom they have been submitted for examination as to their authenticity. And by the 17 & 18 Vict. c. 125, s. 27, comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine, shall be permitted to be made by witnesses, and such writings and the evidence of witnesses respecting the same may be submitted to the court and jury, as evidence of the genuineness or otherwise of the writings in dispute.
1 Roe d. Brune v. Rawlins, 7 East, 279.
ON EVIDENCE IN MATTERS OF PROFESSIONAL
HITHERTO We have been considering chiefly the principles by which evidence is admitted in courts of justice. We are now to consider, 1st, the principles by which certain classes of evidence are excluded; and 2nd, the principles by which certain real, or apparent exceptions to these rules of exclusion, are re-admitted in evidence.
It is not the object of this work to intrude on the province of jurisprudence, nor to confound the ideas of law as it is, and law as it ought to be. In no science is it more expedient and necessary to draw, as distinctly as possible, the line which divides the actual from the desirable. But since the law of evidence to-day is not the law of evidence as it existed ten, or even five years since; and since every session of Parliament, during the last four years, has produced some alteration in its rules: it may be well to state, at this point, the apparent principle of recent and future modifi
It was a principle of the common law that large classes of evidence were wholly without the elements of truth and safe guidance. As such, they were withdrawn entirely from the consideration of juries. Hence, in the course of centuries, the basis of legal evidence had widened to one of rigid and irrational exclusion. The contingency, or probability of deception from certain sources of evidence, had made our courts lose sight entirely of the contingency or probability of truth flowing from the same sources. To distinguish good from evil, to adopt the one and reject the other,
were faculties and abilities which juries were not presumed to possess; although, inconsistently enough, they were presumed to possess the diagnostic power of pronouncing on the relative value of conflicting evidence, and of drawing inferences which required consummate practical knowledge of inductive logic.
It has been, and will probably long continue to be, the object of the Legislature to lessen and gradually remove these anomalies of the old law. The ancient law of exclusion in matters of evidence has been abridged about half within the last ten years, and the new law is founded entirely on the principle of admission. It is the tendency of the age to permit and to require every description of evidence, from which information. may possibly be derived, to be produced and submitted to courts and juries, however contaminated, or doubtful, or remote its source may appear to be. It is still as much as ever an inviolable principle that no man shall be unfairly prejudiced by his own statements, or the careless language of others; but the great object of courts in modern times is to accumulate as much miscellaneous evidence as possible on every issue, and to leave the question of credibility—the privilege and the duty of distinguishing the gradations of value-to the keen and enlightened intelligence of a court or jury of practical men.
Except when some positive rule intervenes, a witness may be asked, and will be compelled to answer, any question that may be put to him. It seems also to be
understood now, that a witness may be asked any question; but there are many questions which he will not be compellable, and some which he will not be permitted, to answer. So in documentary evidence every writing is admissible, except when it is excluded by a similar principle of law.
But there are still many kinds of evidence which, from principles of public policy, are altogether excluded from the consideration of courts and juries; thus it is a rule that
XXXII. Counsel, solicitors, and attorneys cannot be compelled to disclose communications which have been made to them in professional confidence by their clients.1
When the relation of attorney and client, or of counsel and client, has been established, then this rule operates; and neither the attorney nor counsel can be compelled or permitted,2 without the consent of the client, to make any disclosure or admission which may be fairly presumed to have been communicated by the client, with reference to the matter in issue, under an implied promise of secrecy.
When an attorney holds a document for his client, he cannot, against the will of his client, be compelled to produce it by a person who has an equal interest in it with his client.3 But an attorney may be asked whether he has papers of his client in court; and if by his answer, which is compulsory, he admit the fact, secondary evidence of their contents may be given if the originals are not produced. But if an attorney be subpoenaed to produce a document which he holds for a client, he may, in his discretion, refuse to produce it, and to answer any question as to its contents; and the judge ought not to examine it to ascertain whether it ought to be withheld.5
In a recent case an attorney had been subpoenaed to
1 R. v. Duchess of Kingston, 20 How. St. Tr. 612.
2 Wilson v. Rastall, 4 T. R. 759.
3 Newton v. Chaplin, 19 L. J. 374, C. P.
4 Dwyer v. Collins, 21 L. J. 225, Ex.
5 Volant v. Soyer, 22 L. J. 83, C. P.
6 Phelps and another v. Drew, 23 L. J. 140 Q. B.