or involving some question which depends on the relative position of places, it is often desirable that the jury should have an opportunity of viewing the spot in controversy; since the knowledge derived by these means is far more satisfactory than any which can be obtained by the examination of maps or plans, which are often inaccurate and obscure, and may perhaps have been prepared with an express view to mislead. The attention of the Legislature having been drawn to this subject, a clause was inserted in the Jury Act of 1825,' which enacts in substance, that when in any case, either civil or criminal, or on any penal statute, depending in one of the Superior Courts of Law at Westminster, or in the counties palatine, it shall appear proper that some of the jurors shall have a view of the place in question, in order to their better understanding the evidence that may be given at the trial, the Court or a judge may order that a writ shall be drawn up for such purpose. As the machinery under this statute was needlessly cumbrous, a provision was introduced into the Common Law Procedure Act of 1852, to simplify the practice by substituting a rule for a view in the place of the old writ; and the Judges, in order further to facilitate the mode of procedure, subsequently passed a resolution, that "the rule for a view may, in all cases, be drawn. up by the officer of the Court, on the application of the party, without a motion for that purpose.":

3

§ 503. Still, as the Act of 1825 speaks merely of viewing "the place in question," a view could seldom be granted by the Court, except in actions of a local nature, such as trespass quare clausum

1

6 Geo. 4, c. 50, §§ 23 & 24.

2 15 & 16 Vict., c. 76, § 114, enacts, that "a writ of view shall not be necessary or used; but whether the view is to be had by a common or special jury, it shall be sufficient to obtain a rule of the Court, or judge's order, directing the view to be had; and the proceedings upon the rule for a view shall be the same as the proceedings heretofore had under a writ of view; and the sheriff, upon request, shall deliver to either party the names of the viewers, and also shall return their names to the associate for the purpose of their being called as jurymen upon the trial." See also 16 & 17 Vict., c. 113, § 116, as to the Irish practice.

3 Reg. Gen., H. T., 1853, r. 48. As to what the affidavit in support of the application must contain, and as to costs, see id, r. 49.

H H

fregit, waste, and nuisance; and Mr. Baron Parke even held that the enactment was inapplicable to a case, where an action was brought to recover the value of work done to the defendant's house, and the defence rested on the alleged bad quality of the work. The construction thus put upon the Act proved very clearly that the Superior Courts possessed no adequate powers for ordering a view even in the case of a house; and the Common Law Com. missioners were not slow to perceive, that in numerous other cases an inspection of chattels before trial, either by the party, his witnesses, or the jury, might be of great advantage,—as for example, when the quality or construction of machinery, or the condition, or value, or identity of goods was in dispute. Accordingly, they recommended in their second Report, that the Superior Courts of Common Law should be entrusted with additional powers for ordering the inspection of premises and chattels, and their recommendation was carried out by § 58 of the Common Law Procedure Act, 1854.'

§ 504. This section enacts, that "Either party shall be at liberty to apply to the Court or a judge for a rule or order for the inspec tion by the jury, or by himself, or by his witnesses, of any real or personal property the inspection of which may be material to the proper determination of the question in dispute; and it shall be lawful for the Court, or a judge, if they or he think fit, to make such rule or order, upon such terms as to costs and otherwise as such Court or judge may direct: provided always, that nothing herein contained shall affect the provisions of the Common Law Procedure Act, 1852,' or any previous Act, as to obtaining a view by a jury provided also, that all rules and regulations now in force and applicable to the proceedings by view under the said last-mentioned Act, shall be held to apply to proceedings for inspection by a jury under the provisions of this Act, or as near thereto as may be."

§ 505. The Irish Act of 16 & 17 Vict., c. 113, contains a clause, which, though differently worded, is the same in effect as that

1 Stones v. Menhem, 2 Ex. R. 382.

17 & 18 Vict., c. 125.

22d Rep. p. 37.

just cited; for § 47 provides, that "in any case in which it shall appear to the Court or a judge that it would be necessary, for the purpose of ascertaining the truth of any matter in dispute between the parties in the action, that an inspection or examination of any premises or chattels in the possession or power of either party, and in respect of which, or some right or injury connected with which, the said action shall be brought, should be had by the opposite party, his attorney, agent, witnesses, or by the jury, it shall be lawful for such Court or judge to order that the party, in whose possession or power the same shall be, shall permit an inspection and examination of the said premises or chattels by the jury, or by such person or persons on behalf of the party applying, and at such times and under such regulations, as to the said Court or judge shall seem fit." The Patent Law Amendment Act, 1852,' which extends equally to England and Ireland, recognises the same principle; and under § 42 of that statute, either party may, in an action for the infringement of letters patent, obtain such an order for an inspection as the Court or a judge may think fit to grant.

§ 506. These are admirable provisions so far as they extend, but as a question of policy it will scarcely admit of a doubt, that the power of granting a view, which is at present confined, both in England and in Ireland, to the judges of the Superior Courts, and to proceedings in those Courts, might with great advantage be extended to every court of record. One practical result of thus enlarging the sphere of its operation would be to obviate, in a great measure, the necessity which now obtains, of adopting the costly and uncertain course of removing proceedings from the Central Criminal Court, the Crown Courts at the Assizes, and the Sessions, into the Queen's Bench by certiorari, whenever it is essential to the ends of justice that a view should be granted. It also deserves consideration, whether it be not expedient to empower the presiding judge at any trial to order a view, even after the evidence has been heard, if in his opinion such a step is necessary for the purposes of justice.

115 & 16 Vict., c. 83. 2 See Vidi v. Smith, 3 E. & B. 969, 974.

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CHAPTER VII.

HEARSAY.

§ 507. As evidence afforded by our own senses is seldom attainable in judicial trials, the law is satisfied with requiring the next best evidence, namely, the testimony of those who can speak from their own personal knowledge. It is not requisite that the witness should have personal knowledge of the main fact in controversy; for this may not be proveable by direct testimony, but only by inference from other facts shown to exist. But it is requisite that, whatever facts the witness may speak to, he should be confined to those lying within his own knowledge, whether they be things said or done, and should not testify from information given by others, however worthy of credit they may be. For it is deemed indispensable to the proper administration of justice, -first, that every witness should give his testimony under the sanction of an oath, or its eqvivalent, a solemn affirmation,—and secondly, that he should be subject to the ordeal of a cross-examination by the party against whom he is called, so that it may appear, if necessary, what were his powers of perception, his opportunities for observation, his attentiveness in observing, the strength of his recollection, and his disposition to speak the truth. But testimony from the relation of third persons, even where the informant is known, cannot be subjected to these tests; for, as Mr. Justice Buller observes, "If the first speech were without oath, another oath that there was such speech makes it no more than a mere speaking, and so of no value in a court of justice; besides, it is often impossible to ascertain through whom, or how many persons, the narrative has been transmitted, from the original witness of the fact. It is this, which constitutes that sort of second-hand evidence, termed hearsay; a species of proof

1 Gr. Ev. § 98, in great part.

2 B. N. P. 294, b.

which, with a few exceptions that will be presently noticed, cannot be received in judicial investigations.'

2

§ 508. This rule of exclusion has been recognised as a fundamental principle of the law of evidence ever since the time of Charles the Second; and so strictly is it enforced that it is even held applicable to cases in which, if the declaration be rejected, no other evidence can possibly be obtained; as, for example, where the declaration purports to be that of the only eye-witness of the transaction, and he is since dead." So, it has several times been held, where prisoners have been indicted for ravishing children, who were too young to comprehend the nature of an oath, that statements made by the children to their mothers shortly after

The rule excluding hearsay evidence, or rather the mode in which that rule is frequently misunderstood in courts of justice, is amusingly caricatured by Mr. Dickens in his report of the case of Bardell v. Pickwick, p. 367 :— "I believe you are in the service of Mr. Pickwick, the defendant in this case. Speak up if you please, Mr. Weller.'

"I mean to speak up, sir,' replied Sam. 'I am in the service o' that 'ere gen'l'man, and wery good service it is.'

"Little to do, and plenty to get, I suppose?' said Serjeant Buzfuz, with jocularity.

"Oh quite enough to get, sir, as the soldier said ven they ordered him three hundred and fifty lashes,' replied Sam.

"You must not tell us what the soldier, or any other man, said, sir,' interposed the judge, 'it's not evidence.'

"Wery good, my Lord,' replied Sam."

2

One of the earliest cases in which the rule was acted upon, is Sampson v. Yardley, 2 Keb. 223, Pl. 74, 19 Car. 2.

3 1 Ph. Ev. 209. In Scotland the rule is otherwise; evidence on the relation of others being admitted, where the relator is since dead, and would, if living, have been a competent witness.-1 Dickson, Ev. 66, 67. And if the relation has been handed down to the witness at second hand, and through several successive relators, each only stating what he received from the intermediate relator, it seems to be still admissible, if the original and intermediate relators are all dead, and would have been competent witnesses if living.-Tait, Ev. 430, 431; but see 1 Dickson, Ev. 70. The reason for receiving hearsay evidence in cases where, as is often the case in Scotland, the judges determine upon the facts in dispute, as well as upon the law, is stated and vindicated by Sir James Mansfield, in the Berkeley Peerage case, 4 Camp. 415. It is observable, that, according to the practice of the English Courts, hearsay evidence is often admitted and acted upon in affidavits, which are submitted to the judges only.