of the act, or of the deed of settlement of the company;" and by s. 48, "in all actions, suits, and other legal proceedings for the enforcement of such bye-laws, or other penalties for the breach thereof, the production of a written or printed copy, purporting to have the official seal of the Registrar of Joint Stock Companies affixed thereto, shall be sufficient evidence of such bye-laws." A similar provision is contained in 8 & 9 Vict. c. 16.

A railway bye-law will not be binding on strangers, unless it have been approved by the Board of Trade or Commissioners of Railways, or other proper officer (3 & 4 Vict. c. 97, ss. 7, 10; s. v., 8 & 9 Vict. c. 20, ss. 108 to 111), nor generally, unless it be proved to have come actually or constructively to the notice of the party who is to be affected by it. Where such bye-law is good, or where a statutory notice has been affixed under the Carriers Act, it will be sufficient, apparently, to prove that such a bye-law or notice was duly affixed, and then to prove an examined copy.2

It must be remembered that, notwithstanding the Documentary Evidence Act, and the 14 & 15 Vict. c. 88, s. 14, there are numerous cases in which the originals of documents, apparently of a public nature, must still be produced; and of which neither certificates nor examined copies are admissible. A considerable degree of vagueness still attaches even to many of those cases in which certified or examined copies are clearly admissible; and it should be remembered that, whenever a doubt exists as to whether a document is public or private, the prudent and the right course will be to be provided with the originals. It will also be remembered that the substitution of copies or certificates for original documents is a statutory innovation on the common law; and that where

1 Great Western Railway v. Goodman, 21 L. J. 197, C. P. 2 Tayl. 1275.

a document is even as much of a public as of a private nature, it contains those objectionable elements of hearsay which are opposed to the fundamental principles of the law of evidence. In short, there is no department of evidence in which, notwithstanding the above acts, it is more difficult to pronounce distinctly on the degrees of admissibility; and it will still be a safe rule, as it is the sound principle, to produce the originals of even the most undoubtedly public documents, whenever they can be obtained without excessive difficulty or expense. Considerable doubt seems also to exist as to the kind of public documents which are within the acts. Thus, Mr. Taylor (p. 1230, 2nd edit.) is of opinion that neither under the 7 & 8 Vict. c. 110, s. 32, nor under the 8 & 9 Vict. c. 16, s. 98, by which the entries of the proceedings of companies are evidence, if purporting to be duly signed by the chairman, and sealed with the company's seal, can certified or examined copies be given in evidence, but the original entries must be produced. This position, however, appears to be very doubtful, and not to be supported by any decision. It seems also to be opposed to the spirit and the express language of the Documentary Evidence Act.

Where a public document or mark requires to be authenticated, it may be proved by any expert and credible witness. Thus the Post-Office mark may be proved by any post-master, or by any one who is in the habit of receiving letters by the post.1

BILLS OF LADING.

By the 18 & 19 Vict. c. 111, ss. 1 and 2, every consignee of goods named in a bill of lading, and

1 Abbey v. Lill, 5 Bing. 299.

every indorsee of a bill of lading, becomes the absolute owner, with all the personal rights and liabilities of ownership, subject to the consignor's right of stoppage in transitu, and claims for freight. By sect. 3:

"Every bill of lading in the hands of a consignee or indorsee for valuable consideration, representing goods to have been shipped on board a vessel, shall be conclusive evidence of such shipment as against the master or other person signing the same, notwithstanding that such goods or some part thereof may not have been so shipped, unless such holder of the bill of lading shall have had actual notice at the time of receiving the same, that the goods had not been in fact laden on board: provided that the master or other person so signing may exonerate himself in respect of such misrepresentation by showing that it was caused without any default on his part, and wholly by the fraud of the shipper, or of the holder, or some person under whom he claims.”

BILLS OF SALE

under the Merchant Shipping Act, 1854, s. 55, which are required to be attested, may be proved by any person who is able to bear witness to the requisite facts, without the attesting witness being called: s. 526.

FRIENDLY SOCIETIES.

All rules, &c., copies and extracts, purporting to be signed by the registrar, are admissible without proof of his signature.1

1 18 & 19 Vict. c. 63, s. 30.

1

HISTORIES

are said to be admissible to prove a matter relating to the kingdom at large, such as the death of a sovereign or the time of his accession; 2 but not to prove a particular or local custom. Still less are peerages, army and navy lists, directories, calendars, or other nonofficial publications, admissible.3

1 Bull. N. P. 248.

22 Phill. 155.

3

Sup. Chap. 8.

329

CHAPTER V.

ON PRIVATE WRITINGS, INSPECTION, AND
NOTICE TO PRODUCE.

THE question how far private writings are primary or admissible evidence was examined in the first chapter of the second part of this work. It will be remembered that, generally, personal ex parte statements are never evidence for the party making them; although they are commonly evidence in the nature of an admission against him: (supra, Chapter XVI.) Thus, a voluntary affidavit, made before an officer of the superior courts, is not evidence at Nisi Prius or elsewhere, against a person referred to in it; although such an affidavit will, in a similar case of privity, be evidence against the party who makes it.1 So the affidavit of an absent creditor is inadmissible to oppose an insolvent's application for protection.2

But, when private writings contain a contract, or otherwise embody, or are material to the substance of the issue, they are not only admissible, but also, when producible, indispensable evidence. In such cases a party who relies upon them must either produce them, or account satisfactorily for their non-production. But as such writings are frequently in the hands of an adverse party, who will not voluntarily produce them,

1 Brickell v. Hulse, 7 A. & E. 457; s. v., Morgan v. Couchman, 23 L. J. 36, C. P.

2 Re Wright, 25 L. T. 318.