like it and in this form. I read different portions of it,
It was returned to me,
Upon cross-examination,

and lent it to several persons.
and then I wrote this upon it."
she stated, "The defendant has given me different tracts
at different times. I cannot swear that this is the same
pamphlet the defendant gave me.
It is an exact copy, if
it is not the same. It is the one I wrote upon. I cannot
say I got back the same copy I lent. I only say it is ex-
actly like it. If that is not the copy the defendant gave
me, I do not know what has become of it." It was there-
upon objected, on the part of the defendant, that there was
no evidence that the copy which the witness had received
from the person to whom she had lent one, was the copy
she had received from the defendant, and, therefore, that
it ought not to be received in evidence. The learned
Chief Baron, however, was of a different opinion, and
admitted the pamphlet, and the plaintiff had a verdict.

In Easter term last,

Prendergast obtained a rule nisi for a new trial, on the ground that this pamphlet was improperly admitted.

Byles, Serjt., O'Malley, and Couch, now shewed cause.The evidence was properly admitted; for there was some evidence for the jury, that the pamphlet produced was that which the witness received from the defendant. She stated that she believed it to be the same. The probabilities of the case are in favour of its identity; and there is, moreover, distinct evidence that it was the same. In cases of handwriting the belief of the witness is sufficient. [Parke, B.-The witness can hardly be taken to say, "I believe this to be the same copy, from its appearance. lent a copy and he returned me one, and I have no reason for supposing otherwise than that the one returned is the same as that I lent the person."] There was some evi

1849.

FRYER

v.

GATHERCOLE.

1849. FRYER

v.

dence for the jury, for the probability was, that the work returned was the same. If a person were to place a book GATHERCOLE. upon a shelf, and were to return some time afterwards, and to take one from it, having the appearance of being the same, the reasonable presumption would be that it was SO. The matter, therefore, was a proper one for their consideration.

Prendergast and Palmer, in support of the rule.-There was not the slightest evidence of identity in this case. The witness could not identify the pamphlet by any marks. The plaintiff is under the necessity of proving that the particular pamphlet is the one which the defendant published. Take the case of a publication of large circulation, as "The Times," for example; there the witness might say, that she believed the copy to be the same with that she had lent. The belief of a witness may be sufficient for the purpose of identifying persons or handwriting, but this stands upon altogether a different principle. [Alderson, B.-Suppose a witness says, "The prisoner gave me a bad shilling, and I gave it to my servant to put into a drawer, and she returned and gave me a bad shilling, saying that the drawer was locked." The servant, before the trial of the prisoner, dies, having said that she believes the witness's to be the same coin,-would not that be sufficient to identify it? Or suppose I pass my hand across my eyes for an instant, so as to lose sight of the coin for a moment, cannot I prove the identity? Such a case, although an extreme one, falls within the same principle. Parke, B.— The only difficulty arises from this-that the person to whom the pamphlet was lent might have been called, to have stated that he returned the same work he received.] In the case put by the other side, of a book being placed upon a shelf, there is no intermediate agent; and, therefore, no better evidence could be adduced.

POLLOCK, C. B.-We are all of opinion that this evidence was properly admitted; and therefore, that this rule ought to be discharged. My Brother Parke entertained some doubts at first upon the question'; but he stated to us, before he left the Court (a), that those doubts had been entirely removed. It appears to me that the question is resolved into one of degree only. When the circumstances of the case are examined, it appears that the witness could, with propriety, say no more than this: "I believe the pamphlet produced to be the same as that I received from the defendant, because I received it from the person to whom I had lent it, and for this reason, I expected to receive the same back again; and I had no reason to think it was not, although I cannot positively identify it." If she had put her name upon it before the witness had lent it, there would have been no doubt about the matter; but here she did so after it was returned. Independently of this fact, therefore, the question is, whether there is any evidence that the copy she had received back was the identical copy given to her by the defendant. My Brother Alderson has put several hypothetical cases in the course of the argument, by way of illustration. Now, without considering the case of coin, let us suppose the case of a copy of a book, -a book which is extremely scarce, as, for instance, one of which only two or three copies exist, and suppose a person from the British Museum were to be called as a witness, and he were to say, "Mr. A. B. asked for the work the other day, and it was lent him, and he had it in his possession for some time, and he returned this one to I believe this to be the same work he received, but I will not pledge my oath to its being so. There are but two other copies of the work, one at Paris, the other at Vienna." Such a circumstance would exclude almost all possibility that the work returned was not the same. Now,

me.

(a) His Lorship had left the Court for Chambers.

1849.

FRYER

บ.

GATHERCOLE.

1849.

FRYER

v.

GATHERCOLE.

suppose that a few other copies of the work existed, still there would be some evidence to go to the jury of the identity of the book. The evidence would be weaker. If a solitary copy only existed, the copy returned could not but be the same; and in that case, the evidence must have been received. If there were twenty copies, the probability of its identity would be less; and so if there were five hundred, less still; and so on. In addition to this, the more frequently the party lends it, the probability becomes less that the one returned is the same with that lent; but of that probability the jury are to be the judges. It therefore appears to me, that, when the matter is carefully examined, it comes to a mere question of degree or weight; but still there is some evidence for the jury. If there were some legal evidence to go to the jury in this case, there is no doubt that they were justified in their verdict; and, as there was some evidence to go to the jury, and the objection, if any, was to the weight of it, the work was properly received. This rule ought therefore to be discharged.

ALDERSON, B.-I am of the same opinion. It appears to me that there is some evidence to go to the jury, whenever there is such a coincidence of admitted facts as to make it more reasonable to conclude one thing rather than another. The question here is, whether the book produced is the same as that the witness received from the defendant. She said that she had read a portion of it. She lent it to A. B.; he had it, and it was out of her power and keeping for some time. He returns her a book, which is apparently the same; and she believes it to be so. It was open to the defendant's counsel to have contended that it was not the same, but that another copy had been substituted in its place. And, if the jury had thought that it was probable that the book was not the same, they would have said so by their verdict. What is true in one case of lending is true in many. The less scarce the work may be, the

probability of its being the same may become the less; but after all, it is only a question of degree. If I give a shilling to a person, to take up stairs and to put away, and he hands me one back as the same, it would be a question for the jury to say whether it is the same; and there is nothing unreasonable in it, if they find that it is. In some cases, no doubt, the evidence might be so weak that no reasonable person would act upon it. In this case, the evidence was properly admitted; the objection in reality ought to have been directed to its weight, and not to its admissibility.

Rule discharged.

1849.

FRYER

V.

GATHERCOLE.

HOLLINGWORTH V. PALMER.

THIS was an action of trespass, brought by the plaintiff against the defendant, for breaking and entering certain rooms, offices, and premises of the plaintiff, situate in the borough of Hull, and there seizing certain goods of the plaintiff's, and detaining the same until he paid the defendant the sum of 16l. 15s. 6d.

The defendant pleaded not guilty by statute.

The cause came on for trial at the Spring Assizes for Yorkshire, in 1848, before Alderson, B., when a verdict was found for the plaintiff for 167. 15s. 6d. damages and 40s. costs, subject to the opinion of the Court on the following case:-The plaintiff is a shipowner residing in the suburbs of the borough of Hull, and having a counting

notice of action

stated, "I, J. H., (the plaintiff,) do hereby, according to the form of the statute &c., give you notice, that I shall, by my attornies Messrs. E. & S., of &c., at or soon after the expiration of one calendar month &c., cause a writ of summons to be sued out &c., for that you, on &c., with force and arms &c., caused a distress to be levied at my office of business, at &c., on certain goods &c. belonging to me, being in and upon the said premises, by virtue of a warrant under your hand and seal, bearing date &c., without any reasonable or probable cause &c.; whereby &c. I was then greatly hurt &c.' This notice was indorsed "Messrs. E. & S., of &c., attornies for the within-named J. H." After this notice had been served, Messrs. E. & S. dissolved partnership, and the action was brought by S. alone:-Held, that the notice of action was sufficient, although the action was for a trespass, and the notice stated it to be for causing a distress to be levied; and also that the indorsement was suf ficient, the change of attorney being immaterial.