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EVIDENCE—continued. officer of the Court. Recognizances are probate ; for the Court of Probate has no said to be estreated when they are forfeited cognisance of renl estate (B. N. P. 246). by the failure of the accused to comply And where any contract or agreement has with the condition of the recognizance, as

been reduced into writing, the primary by failure to appear or otherwise.

evidence of it is the writing (Fenn v. GrifESTREPEMENT, WRIT OF. This was

fiths, 6 Bing. 633). But when the narra

tion of an extrinsic fact, i.e., a fact which a writ of waste, and lay in particular for the reversioner against the tenant for life,

has arisen independently of the writing,

has been committed to writing, the fact in respect of damage or injury committed by the latter to the lands or woods of the

may yet be proved by parol, i.e., extrinsic reversioner.

evidence, e.g., a receipt for money (Rambert

v. Cohen, 4 Esp. 213.) Also, parol admisET HOC PARATUS EST VERIFICARE.

sions are good as evidence against the These words were used, when the pleadings party making them, although they relate were in Latin, at the conclusion of any to the contents of a written instrument pleading which contained new affirmative (Slatterie v. Pooley, 6 M. & W. 664). The matter; they expressed the willingness or proper evidence of all judicial proceedings readiness of the party so pleading to es- is the proceedings themselves, or an extablish by proof the matter alleged in his amined copy of them. Thelluson v. Shedpleading. A pleading which concluded in

don, 2 N. R. 228. that manner was technically said to “con- (2.) Secondary Evidence. This is adclude with a verification," in contradistinc- missible where primary, that is, better, tion to a pleading which simply denied evidence cannot be had, e.g., in the case of matter alleged by the opposite party, and a lost deed, upon proof of the loss a copy which for that reason was said to

of the deed is admissible (B. N. P. 254); clude to the country,” because the party and so also upon proof of an unsuccessful merely put himself upon the country, or application to the person who has the legal left the matter to the jury. But now, by custody of the deed (R. v. Stoke Golding, the C. L. P. Act, 1852, s. 67, “no formal 1 B. & A. 173). The wrongful refusal of a conclusion is necessary to any plea, avowry, third person (not being a solicitor) on subcognisance, or subsequent pleading." poena duces to produce a document in his EVICTION. This is the same as dis

possession, is, however, no ground for adpossession or ouster of the possession (see

mitting secondary evidence (Jesus College title OUSTER). It is usually applied to ouster

v. Gibbs, 1 Y. & C. 156); but it is other

wise in the case of a solicitor who so refrom real property only, but it is not inap

fuses (Hibbert v. Knight, 2 Ex. 11). In plicable to the dispossession from personal property also. The covenant for quiet

some cases, secondary evidence of oral testi.

mony is admitted, e.g., where the testimony enjoyment which is usually inserted in

of a witness on a former trial is admitted deeds is in substance a covenant against eviction. It is competent also for a land

on another trial without producing the lord to evict his tenant for proper cause;

witness in person, as where a witness was and a landlord may also be guilty of a

examined in a former action on the same wrongful eviction of his tenant, as where

point between the same parties and he is

since dead (B. N. P. 212), or is kept away without proper cause he either actually, i.e., physically, evicts him, or does any act

by contrivance (Green v. Gatewick, B. N. P.

243). So, also, upon an examination de of a permanent character with the inten

bene esse (which see). And see title NOTICE tion of evicting the tenant, and which is inconsistent with the latter's returning

TO PRODUCE, into or continuing in possession.

It is commonly said, that there are no

degrees of secondary evidence. This means, EVIDENCE Is the proof of, or mode that when secondary evidence is admisof proving, some fact or written document. sible at all, upon failure to produce the It is to be considered (1.) In its Nature, original document, no restriction is put and (2.) In its Object. (..) With regard upon the party producing the evidence as to its Nature,-Evidence is either primary, to the kind of evidence he shall produce or secondary, or presumptive, or hearsay. for that purpose ; but if it was apparent Admissions are not themselves evidence, that more satisfactory evidence might be but narrow the field which the evidence produced than is produced, the jury or a has to cover.

jndge will be influenced by that considera(1.) Primary Evidence. — This is the tion (Doe d. Gilbert v. Ross, 7 M. & W.102). highest kind of evidence which the nature And there is one exception to the rule, of the case admits of. Thus, where a will namely, where by statute a special kind of of lands is to be proved, the primary evi- secondary evidence is substituted for the dence of it is the will itself, and not the original.



(3.) Presumptive Evidence.—This kind of evidence is so called in contradistinction to direct or positive proof whether oral or written; it is not of the nature of secondary evidence, and does not therefore require in order to its admissibility any preliminary proof that positive or direct evidence cannot be procured (Doe d. Welsh v. Langfield, 16 M. & W. 513). The commoner classes of presumptions are the four following, namely :(a.) Presumptions which admit of no con

tradiction by contrary evidence, and which are thence called juris

et de jure; (6.) Presumptions which the Court or a

judge will direct the jury to presume, although noevidence thereof has been given, and which are

thence called juris only; (c.) Presumptions as to which the jury

are left entirely to themselves, being cases in which direct proof of one fact is given with the intention that the jury may from it presume another fact (Fryer v.

Gathercole, 4 Ex. 262); and (d.) Presumptions that the testimony of

a witness who might be, but is not, called, is unfavourable to the

party who omits to call him. For examples of these various kinds of presumptions, see 1 Tayl. Evidence, p. 85; Rosc. Evid. at N. P., p. 38.

(4.) Hearsay.-As a general rule, hearsay, i.e., the declarations of persons not made upon oath when repeated on oath by a witness who heard them, are not admissible as evidence. There are, however, some exceptions to this general rule; thus, hearsay is admissible in the following (a.) In questions of pedigree, in which

questions the declaration (whether oral or written) of deceased members of the family are admissible to prove, e.9., legitimacy, marriage, the date of marriage, the number of children, &c. Entries in a family bible fall under this head. Nor is it necessary that the declarations should be contemporaneous with the facts declared, or even that the declarant should have any personal knowledge of the fact, provided he had it of a relation (Monkton v. Att.Gen., 2 Russ. & My. 159). But the relative whose declarations are offered must be proved to be dead before they can be admitted in evidence (Butler v. Viscount Mountgarret, 7H.L.C. 733); moreover, in proving RECENT events, such as the death, place of birth


age, &c., of a person, where that fact is directly in issue, strict evidence thereof is required. And any declarations made post litem motam are inadmissible. Berkeley

Peerage, 4 Camp. 401. (6.) In questions of public rights, being

rights of a pecuniary nature; and the reasons for the admission are various, being either that the origin of such rights is generally ancient and obscure, and consequently incapable of direct proof, or that in local matters persons residing in the neighbourhood and interested in the rights are likely to be acquainted with them, or that such matters are likely to be the subject of frequent conversation. Such evidence is most commonly admitted for the fol

lowing purposes : (1.) To prove the extent of a manor. (2.) To prove the boundaries between

parishes or mapors. (3.) To prove the existence of a ferry,

&c. But to prove a prescriptive right which is strictly private no such hearsay is admissible. Morewood

v. Wood, 14 East, 327. (c.) As forming part of the transaction

(res gestä), and as being not evidentiary but explanatory thereof. Thus, the accompanying declarations may serve to shew the animus of the actor, when that is material (Bateman v. Builey, 5 T. R. 512); also, generally, the feelings or sufferings of the party (Thompson v. Trevanion, Skin. 402; but see the Gardiner Peerage Case, Le March. Rep. 174-6). The admissibility of the declaration in such cases depends not alone upon its accompanying an act, but on the light which it throws upon an act which is in itself relevant and admissible evidence. Wright v. Doe d. Tatham,

7 Ad. & E. 313. (d.) As being acts or assertions of owner

ship; but a mere declaration of right, coupled with no other act or actual exercise of it, proved or presumable, is inadmissible as evidence in favour of the right asserted, except as against the party making the declaration and per

sons claiming under him. (e.) As being the declarations of persons

who have no interest to misrepresent the truth; but the absence of interest will not alone entitle such


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declarations to be admitted as evidence. Sussex Peerage, 11 Cl.

& F. 85. (1.) As being the declarations of per

sons having an interest adverse to their own declarations. See Bar. ker v. Ray, 2 Russ. 67, n; Higham

v. Ridgway, 10 East, 109. (g.) As being entries, &c., made in the

regular course of business, e.g., a notice indorsed as served by a deceased clerk in an attorney's office is evidence of service (Doe d. Patteshall v. Turford, 3 B. & Ad. 890); and, again, contemporaneous entries by a deceased shopman in his master's books in the ordinary course of business, stating the delivery of goods, are evidence for his master of such delivery. Price

v. Lord Torrington, 1 Salk. 285. (5.) Admissions. These are as good as primary evidence of the fact or facts admitted; and one letter may be used against the writer of it without producing the rest of the correspondence (Barrymore v. Tay. lor, 1 Esp. 326). But, except in cases of estoppel, the party prejudiced by the admission may prove that it was made under a mistake or misapprehension of law or of fact (Newton v. Liddiard, 12 Q. B. 925); and in that manner diminish the prejudice occasioned by it. And, generally, letters marked “ without prejudice," and the replies to such letters, although the replies should not be marked “ without prejudice," cannot be used as admissions or as evidence (Hoghton v. Hoghton, 15 Beav. 278); and admissions made with a view to a compromise are not available against the person making them (B. N. P. 236). A compulsory admission, e.g., in the answer to a bill in Chancery, is available against the person putting in the answer, even in another suit instituted by a different plaintiff, and, a fortiori, if instituted by the same plaintiff, or in the very suit in which the answer has been put in (Fleet v. Per. rins, L. R. 1 Q. B. 536). A party's statement on the record is evidence against him, although it purport to be the statement of a written document, the contents of which are directly in issue in the cause. Slatterie v. Pooley, 6 M. & W. 664.

The uncontradicted statements of any one made in the presence and hearing of the party against whom they are offered are evidence of a matter reasonably within the party's knowledge, at any rate where it was within his power to contradict the statements and he did not do so; but no such consequence follows from the mere omission of a party to reply to a letter, unless the writer was entitled to an answer.

EVIDENCE- continued.

The acknowledgment in a deed of the receipt of money is conclusive evidence, both at Law and in Equity, as between the parties to it of such receipt (Baker v. Dewey, 1 B. & C. 704), unless upon proof of fraud. But the acknowledgment indorsed on the deed is not conclusive (Straton v. Rastall, 2 T. R. 366). receipt not under seal is, on the other hand not in general conclusive, and may be contradicted (Graves v. Key, 3 B. & Ad. 318). But a receipt may amount to an allowance of a

a sum or sums of money, and in that case is of value in itself, although no money has been paid. Branston v. Robins, 4 Bing. 11.

By the C. L. P. Act, 1852, s. 117, either party may call on the other by notice to admit any document, saving all just exceptions; and in case of refusal or neglect to admit, the costs of proof shall be paid by the party neglecting or refusing, whatever may be the result of the cause, unless the judge at the trial shall certify the refusal to be reasonable; and no costs of proof shall be allowed unless such notice has been given, except where the omission to give such notice is, in the Master's opinion, a saving of expense. This is a simplification of the former practice (Rule of Practice, H. T. 4 Will. 4), under which a judge's order to admit was required. The provisions of the C. L. P. Act, 1852, are applicable to every document, whether in the custody or control of the party or not. Rutter v. Chapman, 8 M. & W. 388.

(B.) With regard to its Object,—The object of evidence being to prove the point in issue between the parties, there are three general rules, viz. : (1.) That the evidence be confined to

the issue; (2.) That the substance only of the issue

need be proved ; and, (3.) That the burden of proof lies upon

the party asserting the affirmative, in the absence of any presump

tion of law the other way. In consequence of the first of these three general rules evidence of collateral facts is excluded (Holcombe v. Hewson, 2 Camp. 391); unless where the collateral fact is material to the issue, e.g., in an action by a rector for tithes, where the issue is the existence or not of a farm modus (Blundell v. Howard, 1 M. & S. 292). So, also, upon the general questions of skill, knowledge, or capacity (Folkes v. Chadd, 1 Phill. Ev. 276). But proof of a customary right in a particular manor or parish is, as a general rule, no evidence of the like customary right in an adjoining manor or parish (Somerset (Duke) v. France, 1 Str. 661); but if the manors or parishes are first proved to be held under the same EVIDENCE-continued. tenure the case would be different (Rowe v. Brenton, 8 B. & C. 758). And evidence of general damages, although no part of the issue, is admissible; and evidence of character, as connected with the question of damage, is also in some cases admissible.

Where under R. G., H. T. 1853, r. 19, and the C. L. P. Act, 1852, s. 25, the plaintiff has delivered (or has indorsed on the writ of summons) particulars of his demand, he will be precluded from giving any evidence of demands not contained therein. Wade v. Beasley, 4 Esp. 7; Hedley v. Bainbridge, 3 Q. B. 316.

In consequence of the second of the three before-mentioned general rules, variances or apparent variances which are immaterial require no amendment: e.g., on a count against a sheriff for a voluntary escape, it is enough to prove a negligent escape (Banafous v. Walker, 2 T. R. 126). And if a plea of justification is divisible, e.g., in an action of trespass, it is enough if so much of the plea is proved as is necessary to cover so much of the plaintifi’s declaration as is proved, notwithstanding that the whole plea may have been put in issue by the replication (Spilsbury v. Micklethwaite, 1 Taunt. 146). And now, by C. L. P. Act, 1852, s. 75, all pleadings capable of being construed distributively shall be so taken; and upon issue being taken thereon, if so much thereof as shall be a sufficient answer to part of the causes of action proved shall be found true by the jury, a verdict shall pass for the defendant as to so much, and for the plaintiff as to the residue. With regard to the use of a videlicet, or scilicet, that may or may not dispense with proof of the precise parti. ticulars as stated, according as those particulars as stated are material or not. See also title VARIANCES.

With reference to the third of the three before-mentioned general rules, the burden of proof, see title Onus PROBANDI. See also titles EXTRINSIC EVIDENCE;


EXAMINER. An examiner in Chancery is an officer of the Court of Chancery appointed (1.) to take the depositions of unwilling witnesses when notice of motion for decree has been given, such examination being taken in the presence of all the parties, and the cross-examination and reexamination to follow there and then; (2.) to take the like depositions where issue is joined, i.e., when replication has been filed in any cause, such examination being taken ex parte, and the cross-exainination and re-examination afterwards coming on before the Court itself. There

EXAMINER-continued. are at present two such examiners, but a special examiner is occasionally appointed.

See also title DEPOSITIONS. EXCEPTION. In conveyancing means an exception of part of the thing granted, being a part which is less than and severable from the whole, and which is of such a nature that it may be held by itself. In the grant of a manor, the exception of the Court Baron would be void, that being an incident inseparable from the manor; and, again, in the like grant, an exception of the profits of the manor would be void, as being repugnant to the grant.

In the grant of land, on the other hand, an exception of all mines and minerals thereunder would be a valid exception ; and such an exception is also sometimes (although less accurately) called a reservation of the mines and minerals. A reservation, however, properly denotes the creation of some new hereditament, eg., a rent; whereas an exception is only a slice (so to speak) of the old bereditament.

EXCEPTIONS. Exceptions to an answer to a bill in Chancery are objections taken to it on the ground either of insufficiency or of scandal; or formerly (i.e., prior to 1852) on the ground of impertinence. The objections are stated in the form of a written pleading. However, under the Judicature Act, 1873, this form of taking these objections is superseded (Sch.rule 25), and the Court is to dispose of the allegation of insufficiency in the answer upon motion in a summary way.


However, bills of exceptions and proceedings in error are abolished by the Judicature Act, 1873 (Sch. rule 49).


EXCHEQUER BILLS AND BONDS. These are regulated by stats. 17 & 18 Vict. c. 23, and 29 & 30 Vict. c. 25.

EXCHEQUER, COURT OF. This Court was the first offshoot from the Aula Regis, and) was established by William I. for reyenue purposes, and afterwards regulated by Edward I. The Court took its name from the table at which the judges sat, which, Camden says, was covered with a chequered cloth resembling a chess-board and serving as a counter. Its jurisdiction continued to be principally matters in which the king's revenue was either rally, or by means of the fiction quo minus, fictitiously, in question; but it acquired also some Equity jurisdiction. By the stat. 5 Vict. c. 5, its jurisdiction in Equity has been taken away, and under the Uniformity of Process Act (2 Will. 4, c. 39), its present

EXCHEQUER, COURT OF-continued. jurisdiction does not materially differ from that of the other co-ordinate Courts of Common Law.

See also title COURTS OF JUSTICE. EXCHEQUER CHAMBER. At the time that the Court of Exchequer had an Equity jurisdiction, the Lord Chief Baron, when administering Equity, sat apart in a chamber called the Exchequer Chamber, and that was the original character of the Court so called as constituted by the stat. 31 Edw. 3, st. 1, c. 12. But since the Equity side of the Court of Exchequer was abolished by the stat. 5 Vict. c. 5, the name Exchequer Chamber bas been used, more especially since the Act 11 Geo. 4 & 1 Will. 4, c. 70, in revival, apparently, of a much earlier statute, 27 Eliz. c. 8, to designate the Court of Appeal which is next above the Courts of Queen's Bench, Common Pleas, and Exchequer, and intermediate between these Courts and the House of Lords.

See also title COURTS OF JUSTICE. EXCISE : See title REVENUE, and stat. 29 & 30 Vict. c. 64, intituled “An Act to amend the Laws relating to the Inland Revenue,"

EXCOMMUNICATO CAPIENDO. A writ which issued to the sheriff of the county commanding him to take an excommuni. cated person and imprison him in the county gaol, because within forty days after the sentence had been published in the church the offender would not submit and abide by the sentence of the Spiritual Court. And he remained in prison until he was reconciled to the Church, and such reconciliation was certified by the bishop; upon which another writ, de excommunicato deliberando, issued out of Chancery to deliver and release him; but when such person would not become reconciled, but still remained obstinate in resisting the sentence of the Spiritual Court, and afterwards had been unlawfully delivered from prison before baving given caution to obey the authority of the Church, then a writ excommunicato recipiendo was issued commanding the sheriff to seek after the offender and imprison him again (Reg. Orig. 67; F. N. B. 62). The ecclesiastical punishment of excommunication, or by means of other spiritual censures, appears to have become tacitly abolished, although it is true the stat. 27 Geo. 3, c. 44, limiting prosecutions for brawling and fornication, still remains in the statute book as revised.

EXECUTE. As applied to deeds and other documents, this word denotes to sign, seal, and deliver same, or to sign same, as the case may be. As applied to

EXECUTE-continued. writs, the word denotes the act of the sheriff in carrying out the command of the. Court containid in the writ. Such a writ is called a writ of execution. As applied to criminals condemned to suffer death, the word denotes the act of the executioner in putting the criminal to death. But in each of these three applications, and in every other application, of the word, there is the same meaning; namely, that of completing or perfecting what the law either orders or validates.

EXECUTION, WRIT OF. This is a judicial writ issuing out of the Court where the record or other judicial proceeding is on which it is grounded. It usually issues at the end of fourteen days from the verdict, but it may for good reason be either expedited or delayed; and it may issue within six years after the recovery of the judgment, without getting the judgment revived.

The writ of execution is either a fi. fa., an elegit, or a ca. 8a.; and the plaintiff may sue out either be pleases, and after suing out one, he may abandon it before execution and sue out another; or he may even have several writs running at the same time, either of the same species into different counties, or of different species into the same or different counties. But only one of such writs must be actually executed. If part only of the amount be levied on the one writ so actually executed, then the writ must be returned ; and after the return another writ may issue.

By the C. L. P. Act, 1852, s. 121, the writ should be directed to the sheriff of the county in which it is to be executed. If it is to be executed within a liberty or franchise, it must be directed to the sheriff of the county in which such liberty or franchise is situate. And by s. 134 of the same Act the writ if unexecuted does not remain in force for more than one year from the teste of the writ, unless it is renewed.


ENDUM; ELEGIT; and F1. Fa. EXECUTOR. This word is commonly applied to wills, and as so applied it denotes the person who undertakes the execution of the will. An executor is of two kinds being either,

(1.) A lawful executor; or
(2.) An executor de son tort.

(1.) It is incumbent on a lawful executor to collect, get in, and realize all the personal estate of the testator, and if desirable for the more lucrative realization thereof it is his duty to carry on or continue the trade or business of the testator, which be may do with safety under the direction of

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