point immediately at issue, but as part of the case to be established, it may, of course, be produced; or it may be proved by an exemplification, or an examined copy.

The law divides copies of records into three classes:

1 A. Exemplifications under the Great Seal.

1 B. Exemplifications under the seal of a particular Court. 2. Copies made by an authorized officer.

3. Sworn copies.

1 A. Exemplifications under the Great Seal:

This must be either of a record of the Court of Chancery, or of a record removed thither by certiorari. Lord Coke lays down an absurd rule, that if a record be exemplified at all for purposes of evidence, the whole of it must be exemplified. This rule has, according to the fashion of the English law, received a vague and arbitrary modification.

1 B. Exemplifications under the seal of the Court:

The seals of the Queen's Courts prove themselves; and the exemplification of a record under the seal of any one of them is sufficient.

The seal of the city of London proves itself.

Where a record is completed, it may be proved by an examined copy; but the records of the superior Courts are not complete until they are inrolled. If an ancient record has been lost, it may be proved to the jury by parol or other testimony, as by possession and user.

An office copy in the same cause, and in the same Court, is equivalent to the record itself. Out of that Court it must be proved to have been compared with the original; but a copy made by a person specially appointed to make copies, is admissible in evidence, without proof of an examination with the original. So the indorsement on a deed of bargain and sale inrolled according to the statute, made by the proper officer, is evidence of the inrolment; and the date, indorsed by the clerk of the indorsements, is conclusive. The 13th section of the 1 & 2 Vict. c. 94, makes copies of records, in the custody of the

Master of the Rolls, purporting to be sealed in the Record Office, evidence without further proof; and by the 8 & 9 Vict. c. 113, s. 3, all copies of private, local and personal acts, and of the parliamentary journals, or royal proclamations, purporting to be printed by the printers of the Crown, or of either House, are admitted as evidence.

Wherever an original is of a public nature and admissible in evidence, an examined copy is, for the sake of public convenience, allowed to be given in evidence. So parish registers of baptisms, marriages, and burials, entries of a public nature in books of public corporations; and, by 8 & 9 Vict. c. 113, s. 1, whenever, by an act of Parliament, any certificate, official or public document, or document or proceeding of any corporation or company, or certified copy of a document, bye-law, entry in a register or other book, or of any other proceeding, shall be receivable "in evidence of any particular," the same shall be admitted, provided it purports to be sealed, stamped, or signed as required or directed, without any proof of the seal, stamp, or signature, or official character of the person signing, and without any further proof thereof, in every case in which the original could have been received.

2. It is a rule—that evidence must be confined to the point at issue.

Whether the question be, or be not, relevant to the issue, must of necessity be left in great measure to the discretion of the judge.

It has been held that this rule, in an action for not supplying goods of proper quality, excludes evidence of the quality of the goods with which the defendant has supplied other persons. So where an acceptor of a bill of exchange defends an action on the ground of forgery, he has not been allowed to shew that the drawer has forged his name on other occasions. But, on the other hand, where the question is as to the meaning of a phrase in a libel, other libels, written by the same defendant against the same plaintiff, may be given in

evidence to explain it. So where the knowledge or intent of a person is in issue, evidence of other transactions, tending to shew such intent or knowledge, is admissible.

In the Queen's case, eleven of the judges laid it down as a rule,—that if a witness, on cross-examination directed against his credit, admits certain declarations, and states the motive of those declarations, in a conversation with a person not a party to the suit, all the rest of the conversation beyond this ought to be excluded as irrelevant. This was the rule with regard to conversations with third persons. But it was held, that where the witness had been cross-examined as to a conversation with a party to the suit, all the conversation, whether relevant or not to the subject-matter of inquiry, is thereby rendered evidence,—a doctrine which I have already discussed in the former part of this volume, and which is now happily overruled. As the judges declare what the common law-the imprescriptible inheritance of all Englishmen—is, that heritage varies considerably in amount and value: for without any legislative interference, the judges, some years after this decision, established a different rule, which, though of almost twenty years' standing, has not yet been superseded; and the rule now is, that whether a witness be cross-examined as to a conversation with a party to the suit, or with a third person, his re-examination must be confined to matters connected with the evidence given on cross-examination, and tending to illustrate or account for it. Lord Denman held, that the witness might be asked as to everything that could qualify or explain the statement elicited on cross-examination; but that he would not be allowed to add any independent history of transactions altogether unconnected with it (0).

3. Another general rule is, that it is sufficient if the evidence prove the substance of the issue. the substance of the issue. For instance, in an action on a bond, the condition of which is, that the person bound by the bond-in technical language the obligor-shall

(0) Prince v. Samo, 3 N. & P. 139.

not cut down any trees, if the plaintiff state, as a breach of the bond, that the obligor has cut down a hundred trees, he may prove that any smaller number was cut down. So if an indictment charge that Titius robbed Caius on the highway, and stole from him ten sovereigns, and the proof is, that a robbery was of five sovereigns, and in a field, this is sufficient. So in an action for a malicious prosecution, stating that the plaintiff was acquitted on a particular day, the time of acquittal is not essential. Every allegation that is essentially descriptive must be proved; and every allegation which narrows and limits what is essential, is descriptive: so in contracts, libels, and written instruments in general, every part is a description of the whole. Therefore, allegations of names, sums, magnitudes, dates, and so forth, if essential to the identity of the writing, must be literally proved. Thus, in an action on the case for deceit in a sale, by two defendants, proof of sale and warranty by one only was held a fatal variance. So in Bristow v. Wright (Doug. 665), it was held, in an action against the sheriff for taking goods without leaving a year's rent, that though the particulars of the demise need not have been set forth at all, yet, as they were set forth, they ought to be set forth accurately; and that as they were not proved in conformity with the statement, the variance was fatal. Lord Mansfield, after saying "that the strong bias of his mind was always to prevent justice from being defeated or delayed by formal slips," held, probably in deference to his brethren, for he had at first overruled the objection, that the strict rule must prevail, and nonsuited the plaintiff. "Contracts," said Mr. Justice Buller, a thoroughly corrupt but very able judge, speaking of this very case in Pepin v. Solomons (5 T. R.), " are in their nature entire, and in pleading they must be stated accurately; but as the evidence in the case of Bristow v. Wright did not accord with the contract stated in the declaration, and which was the foundation of the action, it was properly determined that a judgment of nonsuit should

it was.

be entered." The distinction then is, between what may, and what may not, be rejected as immaterial. If the whole averment might be struck out, leaving a sufficient cause of action, the variance was not fatal; but if it could not be struck out without carrying away a material part of the plaintiff's case, One of the most grotesque decisions on this point is Harris v. Mantle (p), (3 T. R. 367.) The confusion and contradiction thus created might have satisfied Lord Coke himself. But fortunately the doctrine of variances is comparatively of little consequence; as, by the 3 & 4 Wm. 4, c. 42, s. 33, after reciting (as calmly as if it was not a national disgrace, and as if the evil had happened in the twelfth century, or in China) the delay and interruption of justice occasioned by these absurd quibbles, power is given to the judge "to cause the record, writ, or document in any civil action, information in the nature of a quo warranto, or proceedings on a mandamus, to be forthwith amended, when any variance shall appear between the proof and the recital or setting forth of any contract, custom, or prescription, or other matter," on certain terms. The 9 Geo. 4, c. 15, gave a similar power of amendment in any indictment or information for any misdemeanour; and the same power is now extended to indictments and informations for all offences whatever, by 11 & 12 Vict. c. 16, s. 4. 4. Res Judicata (q).

A judgment between the same parties for the same cause of action is conclusive, though the form of the action be different. It is evidence only of what is directly at issue, not of collateral matter only, nor of what may be inferred from it. If only offered in evidence, and not pleaded, it is not an estoppel; if pleaded, it is an estoppel in a second action.

(p) See notes to Goram v. Sweeting, 2 Wms. Saund. 199.

428.

(q) Duchess of Kingston's case, 2 Smith's Leading Cases, note, p. In Barrs v. Jackson, 1 You. & Coll. 585, the subject is thoroughly discussed and illustrated from the Roman law, in the elaborate judgment of the Vice Chancellor Knight Bruce. Livingstone, Code 658; Starkie, vol. 1, p. 193; Phillipps & Amos, p. 512; Greenleaf, p. 570.