A New Law Dictionary and Institute of the Whole Law

ESTREAT-continued.

officer of the Court. Recognizances are said to be estreated when they are forfeited by the failure of the accused to comply with the condition of the recognizance, as by failure to appear or otherwise.

ESTREPEMENT, WRIT OF. This was a writ of waste, and lay in particular for the reversioner against the tenant for life, in respect of damage or injury committed by the latter to the lands or woods of the reversioner.

ET HOC PARATUS EST VERIFICARE. These words were used, when the pleadings were in Latin, at the conclusion of any pleading which contained new affirmative matter; they expressed the willingness or readiness of the party so pleading to establish by proof the matter alleged in his pleading. A pleading which concluded in that manner was technically said to "conclude with a verification," in contradistinction to a pleading which simply denied matter alleged by the opposite party, and which for that reason was said to "conclude to the country," because the party merely put himself upon the country, or left the matter to the jury. But now, by the C. L. P. Act, 1852, s. 67, "no formal conclusion is necessary to any plea, avowry, cognisance, or subsequent pleading."

EVICTION. This is the same as dispossession or ouster of the possession (see title OUSTER). It is usually applied to ouster from real property only, but it is not inapplicable to the dispossession from personal property also. The covenant for quiet enjoyment which is usually inserted in deeds is in substance a covenant against eviction. It is competent also for a landlord to evict his tenant for proper cause; and a landlord may also be guilty of a wrongful eviction of his tenant, as where without proper cause he either actually, i.e., physically, evicts him, or does any act of a permanent character with the intention of evicting the tenant, and which is inconsistent with the latter's returning into or continuing in possession.

EVIDENCE. Is the proof of, or mode of proving, some fact or written document. It is to be considered (1.) In its Nature, and (2.) In its Object. (A.) With regard to its Nature,-Evidence is either primary, or secondary, or presumptive, or hearsay. Admissions are not themselves evidence, but narrow the field which the evidence has to cover.

(1.) Primary Evidence. - This is the highest kind of evidence which the nature of the case admits of. Thus, where a will of lands is to be proved, the primary evidence of it is the will itself, and not the

EVIDENCE-continued.

probate; for the Court of Probate has no cognisance of real estate (B. N. P. 246). And where any contract or agreement has been reduced into writing, the primary evidence of it is the writing (Fenn v. Griffiths, 6 Bing. 633). But when the narration of an extrinsic fact, i.e., a fact which has arisen independently of the writing, has been committed to writing, the fact may yet be proved by parol, i.e., extrinsic evidence, e.g., a receipt for money (Rambert v. Cohen, 4 Esp. 213.) Also, parol admissions are good as evidence against the party making them, although they relate to the contents of a written instrument (Slatterie v. Pooley, 6 M. & W. 664). The proper evidence of all judicial proceedings is the proceedings themselves, or an examined copy of them. Thelluson v. Sheddon, 2 N. R. 228.

(2.) Secondary Evidence.-This is admissible where primary, that is, better, evidence cannot be had, e.g., in the case of a lost deed, upon proof of the loss a copy of the deed is admissible (B. N. P. 254); and so also upon proof of an unsuccessful application to the person who has the legal custody of the deed (R. v. Stoke Golding, 1 B. & A. 173). The wrongful refusal of a third person (not being a solicitor) on subpoena duces to produce a document in his possession, is, however, no ground for admitting secondary evidence (Jesus College v. Gibbs, 1 Y. & C. 156); but it is otherwise in the case of a solicitor who so refuses (Hibbert v. Knight, 2 Ex. 11). In some cases, secondary evidence of oral testimony is admitted, e.g., where the testimony of a witness on a former trial is admitted on another trial without producing the witness in person, as where a witness was examined in a former action on the same point between the same parties and he is since dead (B. N. P. 242), or is kept away by contrivance (Green v. Gatewick, B. N. P. 243). So, also, upon an examination de bene esse (which see). And see title NOTICE TO PRODUCE.

It is commonly said, that there are no degrees of secondary evidence. This means, that when secondary evidence is admissible at all, upon failure to produce the original document, no restriction is put upon the party producing the evidence as to the kind of evidence he shall produce for that purpose; but if it was apparent that more satisfactory evidence might be produced than is produced, the jury or a jndge will be influenced by that consideration (Doe d. Gilbert v. Ross, 7 M. & W. 102). And there is one exception to the rule, namely, where by statute a special kind of secondary evidence is substituted for the original.

EVIDENCE-continued.

(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 contradiction by contrary evidence, and which are thence called juris et de jure;

(b.) Presumptions which the Court or a judge will direct the jury to presume, although no evidence 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

cases :

(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.g., 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, 7 H. L. C. 733); moreover, in proving RECENT events, such as the death, place of birth

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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.

(b.) 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 following purposes :—

(1.) To prove the extent of a manor. (2.) To prove the boundaries between parishes or manors.

(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 gesta), 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. Bailey, 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 ownership; 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 persons 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. (f.) As being the declarations of persons having an interest adverse to their own declarations. See Barker v. Ray, 2 Russ. 67, n; Higham v. Ridgway, 10 East, 109. (9.) 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. Taylor, 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. Perrins, 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.

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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). A 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 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 presumption 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

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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 plaintiff'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 partiticulars 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; INTERPRETATION; and WITNESSES. EXAMINATION: See WITNESSES.

EXAMINER. An examiner in Chancery is an officer of the Court of Chancery appointed (1.) to take the depositious 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-examination and re-examination afterwards coming on before the Court itself. There

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, e g.. a rent; whereas an exception is only a slice (so to speak) of the old hereditament.

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.

EXCEPTIONS, BILL OF: See ERROR.

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

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

This Court

EXCHEQUER, COURT OF. was the first offshoot from the Aula Regis, and was established by William I. for revenue 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 really, 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.

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