is privileged from production on the grounds of public policy, secondary evidence of its contents is inadmissible (7).

RULE 4.

As to Evidence excluded on ground of Indecency.

Evidence may be excluded on the ground of indecency; but this rule only holds in civil cases. Thus, it is an established rule that parties shall not be permitted after marriage to say that they have had no connection (r), and this is not altered by the Evidence Further Amendment Act, 1869, except in regard to proceedings instituted in consequence of adultery (s). But although a wife cannot prove non-access in order to bastardize her issue (f), yet it appears that if that fact is proved by other evidence, she may be examined as to collateral facts, such as the name of an adulterer, or the time of a birth («), and, although a father cannot be heard to say that a child born of his wife after marriage is illegitimate, yet a man reputed to be married can be heard to say he was not married when a question arises as to the

(q) Horne v. Bentinck, 2 B. & B. 130.

(r) R. v. Sourton, 5 A. & E. 180; Anon. v. Anon., 23 Beav. 273.

(8) Guardians of Nottingham v. Tomkinson, L. R., 4 C. P. D. 343; 48 L. J., M. C. 171; 28 W. R. 151.

(t) Atchley v. Sprigg, 33 L. J., Ch. 345.

(u) R. v. Luffe, 8 East, 193; Legge v. Edmunds, 25 L. J., Ch.

pedigree of a child (x). In criminal cases no objection can be taken to evidence on the ground of indecency; and in civil cases the rule is restricted to such as involve considerations of domestic morality; or cases in which the admission of such evidence would only tend to encourage the shameless or morbid outrage of conventional propriety.

(x) Murray v. Milner, L. R., 12 Ch. D. 845; 48 L. J., Ch. 775; 27 W. R. 881.

CHAPTER VIII.

HEARSAY OR SECOND-HAND EVIDENCE.

THE term hearsay or second-hand evidence is by some writers extended to cover all evidence which is reported, whether by a witness or any other medium, to the court, and this is probably scientifically accurate. In a treatise of this nature it is, however, preferable to confine the term to its ordinary application, i.e., to the oral or written statement of a person who is not produced in court, conveyed to the court either by a witness or by the instrumentality of a document. Hence, what a witness himself says is original evidence, but when he repeats what another person has said this is hearsay. It is a well-settled general rule that

Hearsay or second-hand evidence is inadmissible.

The ground for the rejection of hearsay or secondhand evidence lies in the fundamental principle that evidence has no claim to credibility unless it be given on oath, or what is equivalent to an oath, and unless the party to be affected by it have an opportunity of cross-examining the witness. The distinction between original and hearsay evidence is of the widest possible kind, when they are considered as elements of, and guides to, moral certainty.

When a witness states something which he himself has either seen or heard, directly affecting the parties. to a proceeding, such a statement contains clearly the requisite principles of presumptive truth: but when he states something which he has heard from another person, the statement affords no satisfactory or reasonable information. A multitude of probable contingencies annihilate its value. Thus, the witness may have misunderstood or imperfectly remembered, or even may be wilfully misrepresenting the words of the third person; or the latter may have spoken hastily, inaccurately, or even falsely.

In the Berkeley Peerage case (a), it was said by Mansfield, C. J.:-"By the general rule of law, nothing that is said by any person can be used as evidence between contending parties, unless it is delivered upon oath in the presence of those parties.

. . Some inconvenience no doubt arises from such rigour. If material witnesses happen to die before the trial the person whose cause they would have established may fail in the suit; but although all the bishops on the bench should be ready to swear to what they heard those witnesses declare, and add their own implicit belief of the truth of the declarations, the evidence would not be received."

Where the object of evidence is to satisfy the court on matters which are for the court and not for a jury, hearsay evidence is unobjectionable, even where the court is discharging the function of a jury. Thus, in order to show that reasonable search has been

(a) 4 Cam. 414.

made for a lost indenture, a witness may be asked whether he has inquired of persons who were likely to know about it, and what answers were given to his inquiries (b).

The general doctrine is illustrated in Spargo v. Brown (c), which was an action for excessive distress; and the question was, whether the plaintiff was tenant to the defendant Hugh Brown, or to his brother John Brown. The plaintiff had paid rent to John; but the defendant, to show that the money had been paid to John as his (the defendant's) agent, offered in evidence accounts tendered to him by John Brown, in which John described himself as the agent of the defendant. It was objected that John Brown, not being dead, ought to have been called as a witness. The judge rejected the evidence on this ground, and the full court upheld his ruling. Littledale, J., said:"The general rule is, that where a person is living, and can be called as a witness, his declaration, made at another time, cannot be received in evidence:" and Bayley, J.:-"The general rule is, that every material fact must be proved on oath. There is an exception to that rule, viz., that the declarations of a party to the record, or of one identified in interest with him, are, as against such party, admissible in evidence; but, generally speaking, mere declarations not upon oath are not evidence. The acts of a party may be evidence; but here the defendant merely produced a paper in the handwriting

(6) R. v. Braintree, 1 E. & E. 51.

(e) 9 B. & C. 935.