CUSTOM.-Evidence-Written contract-Usage of trade-Repugnancy.—In an action for wages by an apprentice, upon an indenture, whereby the deft. agreed to find unto the plt. sufficient meat, drink, and certain yearly wages, "lodging, and all other necessaries," during the term of apprenticeship, the deft. pleaded a set-off of sums paid for clothes and washing for the plt., and sought to show a usage in his particular business for the master to supply such items in the first instance, and to deduct the sums paid in respect thereof from the wages of the apprentice :-Held, that even if such a usage were proved, it would be repugnant to the express terms of the contract, and that the evidence was therefore inadmissible.-Abbot v. Bates, 45 L. J. Rep. App. C. P. 117.

EJECTMENT.-Re-entry for non-repair-Assignee of the reversion.—The assignee of the reversion of a lease containing the usual power of re-entry to the lessor and his assigns in case of any breach of covenant by the lessee, may maintain ejectment, in the event of a breach of the general covenant to repair, without having previously given notice to the lessee that he had become entitled to the reversion.-Scaltock v. Harston, C. P. 125.

FRAUD.-Contract-Concealed sub-contract between one contracting party and the agent of the other contracting party.-Deft. company contracted with plt. company to make and lay a telegraphic cable for £300,000, of which £40,000 was to be paid on the order being given, and the remainder by instalments upon certificates given by the plt.'s engineer. Shortly afterwards the plt. company's engineer agreed with the deft. company to lay the cable for a sum to be paid to him by the defts. from time to time by instalments upon receipt by the deft. company of the instalments agreed to be paid them by the plt. company. This agreement was not disclosed to the plt. company, who gave the order for the cable, and paid the £40,000 to the deft. company; but the work was not completed. Two years after the date of the contract a bill was filed to set it aside on the ground of fraud :--Held, that the agreement between the engineer and the deft. company was such a surreptitious dealing between the agent of one principal to the contract and the other principal as amounted to fraud, and that therefore the plt. company were entitled to have their contract with the deft. company set aside, and the £40,000 repaid to them. Per Mellish, L. J.—Although the Court requires strict proof of the existence of fraud, yet where a case of fraud is proved, it will draw reasonable inferences as to the time when it was commenced.-Panama and South Pacific Telegraph Co. (Lim.) v. India Rubber, Gutta Percha and Telegraph Works Co. (Lim.) 45 L. J. Rep. Ch. 121.

THE

JOURNAL OF JURISPRUDENCE.

THE LAW OF EVIDENCE.

FEW men are so well qualified as Mr. Fitzjames Stephen to write a book on the Law of Evidence. In his earliest work-" A General View of the Criminal Law of England"-he showed himself the possessor of a singularly calm, clear, and judicial intellect. His defence of Dr. Rowland Williams, and his "Essay on Liberty, Equality, and Fraternity," are marked by learning and philosophy -two qualities not always found in the working lawyer. The chief result of his Indian career was the Indian Evidence Act (No. 1 of 1872), which cost two years of preparation. We observe that since his return to this country he occasionally appears on Circuit and at the Bar of the Judicial Committee; and we trust that the man whom Dundee rejected for "Ginx's Baby," may speedily reach that eminent position, whether legal or political, to which. his powers of both thought and expression undoubtedly entitle him. In the meantime, the Council of Legal Education has made him a Professor of Common Law, and his course of lectures for the winter (1875-76) is now before us in the shape of a " Digest of the Law of Evidence." This book, as its author explains, is very much a reproduction of a Code of the English Law of Evidence which he drafted for Lord Coleridge in 1873, and which his Lordship attempted to introduce to the House of Commons. Even the "cases," or short illustrations which are given for every rule, were, some of them, contained in the Draft Code; for Lord Coleridge was going to make the experiment of asking Parliament not merely to legislate, but also to explain the meaning of its legislation. Mr. Stephen seems for the present to have given up his favourite idea of legislative codification as hopeless. You might as easily get the project of a Code discussed in Parliament, he says, "as get a Committee of the whole House to paint a picture." And VOL. XX. NO. CCXL.-DECEMBER 1876.

2 U

so, with characteristic courage, he says this must be done by private writers; and he lays this little book of 184 pp. as a foundationstone for the new temple of the law.

The three divisions of the Law of Evidence are: I. What facts may and may not be proved; II. What sort of evidence must be given of a fact which may be proved; III. By whom and in what manner the evidence must be produced by which any fact is to be proved. The first includes the doctrine of relevancy, under which are treated hearsay, opinion-evidence, and evidence of character. The second deals with judicial notice, with oral evidence (which, however, is the subject of a single rule), with primary, secondary, and attested documents, with the proof of public documents, with certain presumptions as to documents, and with the modification and interpretation of documents by oral evidence. The third division includes the burden of proof, presumptions and estoppels, the competency and the examination of witnesses. Now, let us compare this arrangement with that chosen by the only modern writer on the subject in Scotland. Sheriff Dickson in his learned and accurate treatise gives (1st) general rules applicable to all kinds of evidence, and (2nd) rules applicable to the different instruments of evidence. The first division contains what the author has to say about relevancy in general, about hearsay evidence, about evidence of character. The question of proving motive, preparation, subsequent conduct, explanatory statements, etc., is dealt with under the head of "hearsay," and also in a different part of the book, viz., Title 1 of Part ii. Book II. Much the same question occurs in the chapter on circumstantial evidence, where he also treats of such similar, though unconnected, events as are generally admitted for the purpose of proving intention, good faith, system, etc. The division of the subject here into (1) circumstances of a purely material nature, (2) those relating to men and the lower animals in their character of living beings, and (3) mental phenomena, does not seem to be happy. It undoubtedly exhausts the universe of circumstantial evidence, and is usefully illustrated by abstracts of causes célèbres, but it does not seem to hang on any principle of relevancy. The whole doctrine of admissions, confessions, and declarations, with the peculiarities which occur in the case of public records, tradesmen's books, historical documents, Mr. Stephen treats in connection with that of hearsay; for hearsay, if you consider the matter, is not confined to oral evidence, and documentary admissions must surely be governed by similar principles to those which apply to admissions made by word of mouth. But Sheriff Dickson treats of admissions, declarations, and confessions in a book devoted to the statements and oaths of parties and their agents; and the law relating to public records, histories, tombstones, mercantile books, etc., he introduces under the general title of "written evidence," and the special title of "public and official and analogous writings," although

the whole of that book and title, or nearly so, is occupied with a detail of the method in which private and public documents are proved. Finally, one would expect to see prominence given in a discussion of relevancy to the admission of opinion - evidence. What more startling exception to ordinary rule? This subject will be found in a section near the end of the book, headed, "On the mode of conducting the examination of witnesses." We have mentioned what seem to us a few omissions in the general part of Sheriff Dickson's work. It seems, further, to contain too much as well as too little. What reason can be given for including among "general rules applicable to all kinds of evidence," the following titles: "Admissibility of parole proof of the contents of writings;" "admissibility of copies and excerpts;" "secondary evidence of documents lost or withheld;" "admissibility of parole or other extrinsic evidence to contradict, modify, or explain writings"? Another part of the work professes to contain the rules specially applicable to written evidence. Again, at the end of his work, Sheriff Dickson, after exhausting what he had to say on evidence generally, on documentary evidence, and on testimony of witnesses, devotes Book IV. to another species of evidence, viz., "real evidence or evidence derived from things." It is of course necessary to give an account of the Court rules for the production of articles, not being documents, ie., not marked for the purpose of securing a record of any matter in issue; but it is scarcely justifiable to speak of facts which have been placed before the senses of the jury as constituting a different species of evidence from facts (perhaps of an identical nature) which have been proved by the testimony of witnesses.

One preliminary remark of Mr. Stephen we think of great importance, because it tends to clear the general notion of the Law of Evidence derived from the text-books on that subject. He excludes all consideration of what may be proved under particular issues, as either part of the law of pleading, or belonging to a particular title of the substantive law. It is of course obvious that the doctrine of relevancy, both general and special, can be illustrated or explained only by reference to particular issues. But this is quite different from the case where the proof of particulars is dealt with as an exception from a rule of evidence, or as constituting a new rule. Sheriff Dickson devotes seventy pages to a statement of the rules of prescription, and fifty-three pages to an enumeration of the restrictions which the law imposes on the mode of proving certain facts. What is prescription but a declaration that for some reasons which seem good to the law, but which certainly do not belong to the Law of Evidence, you shall not prove certain facts in the ordinary way, or in any way? In the same way, on grounds of public policy, the law says trusts may be proved only in a specified manner. But though these rules apply to all bills and to all trusts, the discussion of the Act 1696, c. 15,

or of the sexennial limitation, clearly belongs to the substantive law of trusts and the substantive law of bills respectively. In the same way seventy-two pages are devoted to presumptions juris et de jure (which, by the by, Mr. Stephen very sensibly calls what they are, not presumptions at all, but conclusive proof), and to presumptions juris. Some of these relate to facts of such a general nature that they may be usefully placed even in a treatise which deals with evidence as such. But of the greater number it may be said that they are cases in which the substantive law has interfered with the Law of Evidence. The presumption that a deed struck at by the Act 1621, c. 18, is a fraudulent device to defeat creditors, is a part of the Law of Bankruptcy. Again, there is an infinity of matters regulated by statutes which, for a particular purpose (often in order to facilitate the repression of crimes and offences), direct that proof of specified facts shall be equivalent to proof of the fact in issue. For instance, the 190th and 191st sections of the recent Customs Consolidation Act (39 & 40 Vict. c. 36), after defining the offence of signalling a smuggling vessel in the daytime from board ship, or from the coast, or from within six miles of the coast, goes on to enact that the burden of proving that the signal was not made for the purpose of giving notice to the smuggler shall be on the defendant. That means that the ordinary rule binding a prosecutor or a pursuer to prove the intent he puts in issue is to be broken in this case; and the matter is aggravated by a provision that it does not signify whether the smuggler is near enough to notice the signal. Now, these sections may be quite necessary in the interests of the Revenue laws; but who would say that they have any connection with the Law of Evidence? They are not even good illustrations of an extreme case. Lastly, the rules for compelling the attendance of witnesses, and the production of documents, for getting proof on commission, etc., properly belong to practice; and while it is most proper and necessary to have in one book all that the Courts have decided on the subject of proof, whether it be a principle of evidence or confined to a particular set of circumstances, it is well to remember that a great part of such a compilation has nothing to do with the general considerations on which the Law of Evidence is based. Nothing is more vital for the legal student than to have the great outlines of his science clearly before his eyes. In this way only can he have any security that the treatment of each question as it arises will not be perplexed by the introduction of foreign considerations.

The first point of general interest which attracts us in Mr. Stephen's book is his attempt to give a logical definition of relevancy. He had already tried his hand in the Indian Evidence Act, of which we quote two sections:-" (7.) Facts which are the occasion, cause, or effect, immediate or otherwise, of relevant facts, or facts in issue, or which constitute the state of things under which they happened, or which afforded an opportunity for their