quires, that a party shall have previous notice to produce a written instrument in his possession, before the contents can be proved as evidence in the cause, has been made with good reason; in order that the party may not be taken by surprise, in cases where it must be uncertain, whether such evidence will be brought forward at the trial by the adverse party. But this reason will not apply to cases, where, from the nature of the proceedings, the deft. has notice, that the pliff. means to charge him with the possession of the instrument. It cannot, in such cases, be necessary to give any other notice, than the action itself supplies" (180).

"Nor does the principle of the rule apply to the case, where a party to a suit has fraudulently got possession of a written instrument belonging to a third person; as, where a witness was called, on the part of the deft., to produce a letter written to him by the pliff., and it ap peared that, after the commencement of the action, he had given it to the pltff.; in this case, though a notice to produce had not been given, parole evidence of the contents was admitted, because the paper be longed to the witness, and had been secreted in fraud of the subpæna" (181).

120. Affidavits.] "Affidavits, being admissions upon oath, are evi dence as such against the parties who made them. When filed with the clerk of the rules in the King's Bench, they may be proved by office copies; but if filed with any other officer, they must be proved by examined copies, or be produced."

"All other affidavits not filed, can be proved only by production of the affidavits themselves, and by parole evidence of their having been sworn (182); or if not proved to be sworn, yet perhaps they may be received as admissions of the deponents, upon proof of their handwriting. (183.)

121. Books of Merchants and Trades-people.] "The stat. 7, Jac. I, c. 12, enacts," that the shop-book of a tradesman shall not be evidence, in any action for wares delivered, or work done, above one year before the bringing of the action, except the tradesman or his executor, shall have obtained a bill of debt or obligation of the debtor for the said debt, or shall have brought against him some action, within a year next after the delivery of the wares, or the work done."

"An entry made by a tradesman himself, stating the delivery of goods, is not evidence for him; but, whether made by him or not, it may serve as a memorandum to refresh the memory of the shopman, and for that purpose may be used by him" (184).

Entry, when Evidence.] "The entry in the tradesman's book ought to

(180) Phillipps on Evidence, vol. i, p. 423. (181) Phillipps on Evidence, vol. i. p. 424.

have

(182) The usual course is for a magistrate's clerk, if sworn before a magistrate,

to produce the affidavit, and to swear to the hand-writing.

(183) Archbold's Crim. Plead.,

p. 83.

(184) Phillipps on Evidence, vol. i, p. 253.

have been made by the shopman; or, if not actually written by him, should at least appear to have been observed by him soon after it was made, so as to enable him to speak as to its correctness, and that the entry may be tantamount to one made by the shopman himself (185). If the shopman be living, he ought to be produced as a witness, that he may explain the circumstances and dealings, on which the entry was founded. If the person, who made the entry, was employed, as shopman or clerk, to deliver goods, &c., and he is since dead, an entry made by him will be evidence under certain restrictions. But proof of the hand-writing of the clerk, and that he is gone abroad, and is not likely to return, has been held not to be sufficient to make such an ex-parte memorandum admissible in evidence."

122. Certificates.] Certificates of "christening, marriages, and burials, may be proved by the parish register, in which they are entered, by giving in evidence either the register itself, or an examined copy of it. Besides the register, some proof must be given of the identity of the parties married, &c." (186)

123, Depositions.]-(See Nos. 28, 29, 30, 31, p. 883-884.)

124. Gazettes.] "The public acts of government, and acts by the King, in his political capacity, are commonly announced in the Gazette, published by the authority of the crown (187); and of such acts announced to the public in the Gazette, the Gazette is admitted, in courts of justice, to be good evidence. A proclamation for reprisals, published in the Gazette, is evidence of an existing war. Proclamations for a public peace, or for the performance of quarantine, and any acts done by, or to the King, in his regal character, may be proved in this manner (188).

Gazettes are not evidence of private titles or private interests, as of a presentation, or of a grant by the King to an individual, which have no reference to the affairs of government; nor is a gazette evidence to prove an appointment to a commission in the army" (189). ́

125,

(185) Phillipps on Evidence, vol. i, p. 251. "By stat. 21 Jac. I, cap. 16, debis on"simple" contract, or for arrears of rent, are limited to six years after the cause of action commenced." Mr. Christian observes, "any acknowledgment of the existence of the debt, however slight, will take it out of the statute, and the limitation will then run from that time; and where the expression is ambiguous, it shall be left to the consideration of the jury, whether it amounts or not to such acknowledgment." (Blackstone, vol. iii, p. 307.) "If, therefore, in any suit, the injury or cause of ac-: tion happened earlier than the period expressly limited by law, the deft, may plead the statutes of limitation in bar."-(Blackstone, vol. iii, p. 308.)

(186) Archbold's Crim. Plead., p. 87. The certificate of a medical man relative to the state of an officer's health, would be received by proving his hand-writing, if he could not be produced, and if it were not admitted by the defendant; and upon the like principle, would all other certificates be received.

(187) The London Gazette. The govt. gazettes in India are equally evidence. (188) Phillipps on Evidence, vol. í, p. 387.

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(189) Kirwan v. Cockburn, 5 Esp. N. P. C., 2333 R. v, Gardner, 2 Campb., 513.-(Phillipps on Evidence, vol. i, p. 388.) But a notification in the government gazettes in India of an officer's promotion, is usually deemed sufficient authority for

125. Instructions.] Instructions given to an officer are admissible in evidence; and copies of them, duly authenticated, are admissible, if the originals are not produceable.-(See note 149, p. 435.) ·

126. Letters.] Are admitted in evidence, by calling the writer, or by proving his hand-writing, if he be dead, or cannot be produced (190). (See Hand writing, No. 55, p. 894.)

127. Notes of Hand.] Are admissible, and proved in the same manner as other written evidence.-(See Letters, No. 126, and Handwriting, No. 55, p. 894.)

128. Official Papers.] Reports, returns, &c., are admitted at cts.-mar., without the same strict rules of proof required in courts of law (191). And so are copies, signed by the Adj.gen., or an officer of his department. And so in the case of other official departments, if made in the course of office; but, the officer making them should be called to prove their correctness, where they originate with the department (192).

Official papers are produced by the proper officer belonging to a department, and so with respect to papers from the Secretary of State's office, and other public offices (193), see No. 18, p. 880, Confidential Communications.

129. Promissory Notes.] Promissory notes in India, are not required' to be stamped. A promissory note would, therefore, be received there * in evidence, by proof of the hand-writing.

130.

a paymaster to pay arrears of pay, &c. All that is here meant is, that it would not legally prove the promotion. The genl. orderly book, published at the station, is conclusive evidence of it.

(190) Certified copies are received with the deft's. consent, where the originals have been mislaid.--(Sir John Murray's Trial, p. 35.) And also, certified copies of letters received from the deft. by a Secretary of State.-(Lieut-gen. Whitelocke's Trial, p. 354.) The person who entered a letter is the best evidence to prove the copy. (Sir J. Murray's Trial, p. 341.) Letters must be produced before a witness can be asked as to his motives and conduct respecting them.-(Lord Cochrane's Trial, p. 211.)

(191) Lieut.-gen. Whitelocke's Trial, p. 335.

(192) Sir J. Murray's Trial, p. $73. Where a copy of a return was made out several months after the period it related to, and there was no proof of the book it was taken from, the ct.-mar. refused to receive it in evidence.—(Ibid. p. 338.)

Papers found under the lock and key, and in possession of a deft., are primâ facie. readable against him; but if a memorandum, and the information it contains be not sent to others, it cannot be evidence against them.—(Lord Cochrane's Trial, p. 223.) Initials cannot be construed to mean any particular person.-(Lord Cochrane's Trial, p. 248.)

A paper containing secret intelligence is admitted in evidence without any signature, upon a certificate that the person sending it was paid for the same. “It is admitted by act of parliament, in the Court of Exchequer, in the case where officers swear to the expenditure of secret service money, entrusted to them during a command."-(Sir J. Murray's Trial, p. 322.)

(193) Lieut.-col. Johnston's Trial, p. 17. And the enrolment of the patent appointing an officer, &c., to be Govr, or Com, in chief, is admitted instead of the patent itself."- (Ibid.)

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130. Records.] See Acquittal, No. 5, p. 876, Conviction, No. 22, p. 881 (194).ged et Estupen

? No.

CONTENTS OF CHAP. XXIII. (195)

1. Abatement Plea of, see Pleas, No. 75, p. 905.42
2. Accessories before and after the fact, p.

875.

11. Competency. See: Witnesses, No. 81, p. 906. 12. Confession of the Prisoner, p. 878.th/18 £13. ——▬▬▬▬▬▬ must be voluntary, p. 878

14.

15.

objemuEPX. should be taken in Writing, p. 879,w-bar fi not upon Oath, p. 880.

9d 16.30 not to affect other Prisoners, p. 880, "is

17.

leads to Discoveries, p. 880. 201

9dt 18. Confidential Communications, p. 880. 2 རོབརྩྭ་པ། 【ཛཱ༨

20.

of Interpreter of Agent, p. 880.
official, privileged, p. 881.

b23. Copies, Examination of, p. 882.

od 24. Credit, Credibility. See Witnesses, No. 81, p. 906. 25. Cross-examination. See Witnesses, No. 102, p. 914. 26. Custom, p. 882.6 at V »?

27. Demurrer to Indictment. p. 882

28. Depositions, p. 883.

(194) See No. 115, as to how such evidence is produced.

No.

(195) This Table of Contents is intended to assist any reference that may be made

from Chap. XXIV, p. 919, containing Trial by Court Martial.

39. Evidence, affirmative when required to be produced by Pro

secutor, p. 887.

40.

41.

42.

p. 906.

43.

44.

45.

46.

47.

48.

49.

50.

51.

52.

53.

circumstantial, p. 887.

confirmatory, p. 888.

Credibility and Credit of. See Witnesses, No. 81,

-Demurrer to, p. 889.

Hearsay inadmissible, p. 889.4
of deceased Witnesses, p. 890.

hearsay, part of the Transaction, p. 890.- .
Inquiries by medical Men, p. 8910-imb& .8
hearsay as to third Persons, p. 892.
Negative, p. 892.

GMA N bomizarqqa 8 Presumptive, p. 892. 3 q†‚£77 ko ZoninĀ „e Relevancy, p. 894. (Comorafi to votorumi) .01 Secondary. See Copies, No. 23, p. 882.00 11 Written. See Written Evidence. No. 115, p.919. 54. Examination of Witnesses. See Witnesses, No. 100, p. 913. 55. Hand-writing, proof of, p. 894,400 or aluci

.81

57. Whether the Person be actually Insane, and if so, what are the Proofs of his Derangement, 896, or consi

58. Whether the Symptoms are of such a Nature as to suffer the Individual with Propriety, to retain his Liberty, and enjoy his Property? p. 898.

59. Whether there has been any lucid Interval, and of what Du

ration? p. 898.

60. Whether there is a probable Chance of Recovery); and in Case of Convalescence, whether the Cure is likely to be Permanent? p. 899.

61. Interested Witnesses. See Witnesses, Nos. 92-93, p. 910.
62. Memorandum, p. 901.

63. Misnomer. See Pleas, No. 75, p. 905. 2
64. Objection to Evidence. See No. 643, p. 889.
65. Official Communications, No. 18, p. 880.-
66. Opinion, Questions of, to Medical Men, p. 902.
67.
to Military Men, p. 902.

68. Papers. See Written Evidence, No. 115, p. 919.
69. Parole Evidence. See No. 135, p. 885.
70. Plea of Abatement. See No. 175, p. 905.

of Not Guilty, general Issue, No. 78, p. 906. dál of Non-Jurisdiction, No. 79, p. 906. 3. 1

77.