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quires, that a party shall have previous notice to produce a written in-
strument in his possession, before the contents can be proved as evi.
dence 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 un-
certain, 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 pltff.
means to charge him with the possession of the instrument. It can-
not, 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 belonge
ing 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 pltff., 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 evidence 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 evi-
dence, in any action for wares delivered, or work done, above one year
before the bringing of the action, except the tradesman or his execu-
tor, 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

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have (180) Phillipps on Evidence, vol. i,

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

(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.

423.

have been made by the shopman; or, if not actually written by bim, 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 correctnessand 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 bu. rials, 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).

a: 125. (185) Phillipps on Evidence, vol. i, p. 251.' " By stat. 21 Jac. I, cap. 16, dalis 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 enten 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 a tiön happened earlier than the period expressly limited by law, the deft. may plead the statutes of limitation in bar."-(Blackstone, vol. iii, p. 308.)

E T (186) "Archbold's Crim. Plead., p. 87. The certificate of a medical man relatite to the state of an officer's health, would be received by proving his band-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. 1, p. 387.

(189) Kirwar v. Cockburn, 5 Esp. N. P. C., 2333 - R. v. Gardner, 9 Campbe, 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

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

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 man. ner "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 departo ment. 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. '

,... dat soi 130.

0552 odi ali 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.

0 10 (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. 373. 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 prima 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 i Trial, p. 248.)

A påper 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 com- .. mand."-(Sir J. Murray's Trial, p. 322.). . . in verbi I T

(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).wosci! batur: -1 7 71 7513

ici 4.3.192
CONTENTS OF CHAP. XXIII. (195)
No. , -,

- a p ijos -- -
1. Abatement Plea of, see Pleas, No. 75, p. 905.2
2. Accessories before and after the fact, p. 875. ---
3. Accomplices, p. 876.
4. Acquittal, p. 876.
5.

Record of, p. 876... !!!
6. Admissions, p. 876..
7. Alibi. See p. 877.
8. Approvement and Approvers, p. 877,-,-
9. Articles of War, p. 877. : . ,...-
10. Character of Prisoner, p. 877. "; .nr

.
11. Competency. See Witnesses, No. 81, p. 906.
:12. Confession of the Prisoner, p. 878.pajti. Im

13. ustao must be voluntary, p. 878 in Olsenxhef
14. — should be taken in Writing, p. 879. w-bry

15. - not upon Oath, p. 880. ocentes V310i 33 od 16. do not to affect other Prisoners, p. 880, 1990'

H ie 17. - leads to Discoveries, p. 880. je sicur1 9d: 18..Confidential Communications, p. 880. ? Niger , Yold 9.

of Interpreter of Agent, p. 880. savini 20.

official, privileged, p.881. ,. min -WI 21. Conviction, Certificate of, p. 881. 1.tus amper N A D 22.

Record of, p. 881. Vell'am, 171 523. Copies, Examination of, p. 882. : ..

sd 24. Credit, Credibility. See Witnesses, No. 81, p. 906.

25. Cross-examination. See Witnesses, No. 102, p. 914.
26. Çustom, p. 882.22 3.

7

5 23.1. i 1991l ;
27. Demurrer to Indictment. p. 882 ; par mo i
28. Depositions, p. 883.

Hann

', . 29. —

when Evidence, p. 883. . .. ) 30.

in India, p. 884. La vitto.co 31.

Copy when received, p. 866.6 10:ICO 00 32. Dying Declarations, p. 884... --

* . Ta 33. written, when Evidence, p. 885" ... sc.9 Bai 34. Escape of Prisoner, p. 885.... .!C4 03 35. Evidence, General Rules of, p. 885. Side "Tror 36.

best to be produced, p. 886.us. In 37. - admissibility of, p. 886...

- T 38. - - , affirmative, p. 887... ...... .

(194) See No. 115, as to how such evidence is produced. 23 ---

(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.

.* * No. ofrecen con tim !! Ive

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

secutor, p. 887. 40. - circumstantial, p. 887.,.,

confirmatory, p. 888. 42. -- - Credibility and Credit of. See Witnesses, No. 81,

p. 906. in oriji sinistrasi. Dell
- Demurrer to,' p. 889.

"NAŠ
- Hearsay inadmissible, p. 889.- "!! ! E

of deceased Witnesses, p. 890. i 23Eolda
hearsay, part of the Transaction, p. 890. - d
Inquiries by medical Men, p. 89101-11. A .ð

hearsay as to third Persons, p.892. julho
- - Negative, p. 892. , bulis 11.3t 10979A 8

Presumptive, p. 892. E n 191A ,
- Relevancy, p. 894. ,711-lu 103 >FSIA 01
- Secondary. See Copies, No. 23, p. 882.) if

- 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.), it maison. --- --- ostas 56. Insanity, p. 895. of

100? On--------.cl 57. Whether the Person be actually Insane, and if so, what are the

Proofs of his Derangement, 896. j ------.11 58. Whether the Symptoms are of such ra Nature as to suffer the

Individual with Propriety, to retain his Liberty, and enjoy

his Property?'p. 898. istediginis) - -- -- --- his 59. Whether there has been any lucid Interval, and of what Du

ration ? p. 898. ' ' odio 60. Whether there is a probable Chance of Recovery); and in

Case of Convalescence, whether the Cure is likely to be

Permanent ? p. 899. i bilen !! !!) 61. Interested Witnesses. See Witnesses, Nos. 92-93, p. 910. 62. Memorandum, p. 901. Lov its 63. Misnomer. See Pleas, No. 75, p. 905. - Forum 64. Objection to Evidence. See No. 643, p. 889. - - CD 65. Official Communications, No. 18, p. 880. ------66. Opinion, Questions of, to Medical Men, p. 902.--67.

- - to Military Men, p. 902. 168 68. Papers. See Written Evidence, No. 115, p. 919. - E. 69. Parole Evidence. See No. 135, p. 885.

1

-18 70. Plea of Abatement. See No. 175, p. 905. - ! or? 71. of Autrefois Convict, p. 904. si odo r p 72. — of Autrefois Acquit, p. 903. : - - 1

73. of Autrefois Attaint, p. 904. . - ----- ezt 17 74. of Guilty, No. 77, p. 906.

75. — of Not Guilty, general Issue, No. 78, p. 906. ro. is 76 of Non-Jurisdiction, No. 79, p. 906, ji i odrce I 19.54? Yuldos! A les

11X1. Qol) 11077.

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