The Evidence Act 1871

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AT 1 of 1871

THE EVIDENCE ACT 1871

The Evidence Act 1871 Index


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c i e
THE EVIDENCE ACT 1871

Index Section Page

Preliminary 5

1 Short title .......................................................................................................................... 5
2 Interpretation ................................................................................................................... 5
Competency of Witnesses, etc. 6

3 Witnesses not incapacitated by reason of crime or interest ...................................... 6
4 All parties admissible as witnesses .............................................................................. 6
5 [Repealed] ........................................................................................................................ 6
6 Persons not bound to criminate themselves ............................................................... 6
7 [Repealed] ........................................................................................................................ 7
8 [Repealed] ........................................................................................................................ 7
9 [Repealed] ........................................................................................................................ 7
Impeachment of Credit of Witnesses, etc. 7

10 How a party may contradict his own witness ............................................................ 7
11 Proof of contradictory statements of adverse witness ............................................... 7
12 Cross-examination as to previous statements in writing .......................................... 7
13 Proof of previous conviction of a witness may be given .......................................... 7
14 Impeachment of credit of witness by evidence as to character ................................ 8
Proof of Signatures and Handwriting 8

15 Attesting witnesses need not be produced in all cases ............................................. 8
16 Comparison of disputed writing .................................................................................. 8
17 Copies of Acts of Parliament and Acts of Tynwald ................................................... 8
18 Copies of Acts of State, etc............................................................................................. 8
19 Proof of acts of state, judgments etc, of Foreign States and Courts ......................... 9
20 Proof of registers of vessels, etc .................................................................................... 9
21 Proof of documents of corporations, companies, etc ............................................... 10
22 Copies of public documents ........................................................................................ 10
23 Certificate of conviction or acquittal of a person charged with an
indictable offence .......................................................................................................... 10
24 Act to be cumulative..................................................................................................... 11
25 Certifying false documents, etc ................................................................................... 11
26 Forging seal, stamp, or signature, felony .................................................................. 11
Index The Evidence Act 1871


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Admission of Documents 11

27 Admission of Documents ............................................................................................ 11
28 Proof of admissions ...................................................................................................... 12
29 Proof of notice to produce ........................................................................................... 12
30 to 38 [Repealed] ............................................................................................................ 12
Affidavits, etc. 12

39 Governor may appoint Commissioners for taking affidavits ................................ 12
40 How answers, affidavits, etc, may be sworn ............................................................ 12
41 Special reports by examiners ...................................................................................... 13
Oaths, Affirmations, etc. 13

42 Courts may administer oaths ..................................................................................... 13
43 and 44 [Repealed] ......................................................................................................... 13
45 [Repealed] ...................................................................................................................... 13
46 In legal proceedings not necessary to state that jurors had made
affirmation ..................................................................................................................... 13
Declarations in lieu of Voluntary Oaths 14

47 Declarations in lieu of voluntary oaths ..................................................................... 14
48 [Repealed] ...................................................................................................................... 14
49 Proviso as to previous suits ........................................................................................ 14
ENDNOTES 15

TABLE OF LEGISLATION HISTORY 15
TABLE OF RENUMBERED PROVISIONS 15
TABLE OF ENDNOTE REFERENCES 15

The Evidence Act 1871 Section 1


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c i e
THE EVIDENCE ACT 1871

Received Royal Assent: 16 May 1871
Promulgated: 5 July 1871
Commenced: 5 July 1871
AN ACT
to amend the Law of Evidence, and for other purposes.
GENERAL NOTE:
See SD352/09 Rules of the High Court of Justice 2009 Sch 15.1
para 2 reproduced below:
‘2.
In any statutory provision a reference (however expressed) to —

(a) the superior jurisdiction or summary jurisdiction of the court or of
the Common Law Division, or
(b) the court or the Common Law Division exercising superior
jurisdiction or summary jurisdiction,
shall be construed as a reference to the Civil Division.’
Preliminary
1 Short title

This Act may be cited for all purposes as ‘The Evidence Act 1871’.
2 Interpretation

In this Act the following words and expressions shall, unless repugnant to the
context, have the meanings hereby assigned to them- that is to say —
“Court
” shall mean any Court of Justice, and shall include any judge, and any
other person for the time being having by law, or by consent of parties,
authority to hear, receive, and examine evidence.
“Superior Court
” shall apply to the High Court and also to the Ecclesiastical
Courts.1

“Cause
” shall include any issue, matter, or question, or any inquiry arising in
any suit, action, or other proceeding in any Court, or before any judge,
Section 3 The Evidence Act 1871


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jury, magistrate, coroner, arbitrator, or other person having by law, or by
consent of parties, authority to hear, receive, and examine evidence.
“Indictment
” shall include information or petition, in a case where a private
person may prosecute for an indictable offence; and
“Indictable offence
” shall include an offence which may be prosecuted by
information, or by the petition of a private prosecutor.
“British Possession
” shall mean any of the dominions of Her Majesty other
than the United Kingdom and this Island.
Competency of Witnesses, etc.
3 Witnesses not incapacitated by reason of crime or interest

No person offered as a witness in any cause shall hereafter be excluded, by
reason of incapacity from crime or interest, from giving evidence, either viva
voce or by deposition, according to the practice of the Court, but every person
so offered may and shall be admitted to give evidence, notwithstanding that
such person may or shall have an interest in the matter in question, or in the
event of the cause in which he is offered as a witness, and notwithstanding that
such person offered as a witness may have been previously convicted of any
crime or offence.
4 All parties admissible as witnesses

The parties to any cause, and the husbands and wives of such parties, and the
persons in whose behalf any cause may be brought or defended, and the
husbands and wives of such parties, shall, except as hereinafter excepted, be
competent and compellable to give evidence, either viva voce or by deposition,
according to the practice of the Court, on behalf of either or any of the parties to
the said cause.
5 [Repealed]
2

6 Persons not bound to criminate themselves

Save as mentioned in paragraphs (e) and (f) of section one of the Criminal
Evidence Act 1946, nothing contained in this Act or in the said Act of 1946 shall
render any person compellable to answer any question tending to criminate
himself.3

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7 [Repealed]
4

8 [Repealed]
5

9 [Repealed]
6

Impeachment of Credit of Witnesses, etc.
10 How a party may contradict his own witness

A party producing a witness shall not be allowed to impeach his credit by
general evidence of bad character, but he may, in case the witness shall, in the
opinion of the Court, prove adverse, contradict him by other evidence, or, by
leave of the Court, prove that he has made at other times a statement
inconsistent with his present testimony; but before such last-mentioned proof
can be given, the circumstances of the supposed statement, sufficient to
designate the particular occasion, must be mentioned to the witness, and he
must be asked whether or not he has made such statement.
11 Proof of contradictory statements of adverse witness

If a witness, upon cross-examination as to a former statement made by him
relative to the subject matter of the cause, and inconsistent with his present
testimony, does not distinctly admit that he has made such statement, proof
may be given that he did in fact make it; but before such proof can be given, the
circumstances of the supposed statement, sufficient to designate the particular
occasion, must be mentioned to the witness, and he must be asked whether or
not he has made such statement.
12 Cross-examination as to previous statements in writing

A witness may be cross-examined as to previous statements made by him in
writing, or reduced into writing, relative to the subject matter of the cause,
without such writing being shown to him; but if it is intended to contradict such
witness by the writing, his attention must, before such contradictory proof can
be given, be called to those parts of the writing which are to be used for the
purpose of contradicting him: Provided always, that it shall be competent to the
Court, at any time during the trial or enquiry, to require the production of the
writing for the inspection of the Court, and the Court may thereupon make such
use of it for the purpose of the cause as the Court shall think fit.
13 Proof of previous conviction of a witness may be given

A witness may be questioned as to whether he has been convicted of any felony
or misdemeanour, and upon being so questioned, if he either dispute the fact or
refuses to answer, it shall be lawful for the opposite party to prove such
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conviction; and a certificate, containing the substance and effect only (omitting
the formal part) of the indictment and conviction for such offence, purporting to
be signed by the Clerk of the Rolls, or other officer having the custody of the
records of the Court where the offender was convicted, shall, upon proof of the
identity of the person, be sufficient evidence of the said conviction.
14 Impeachment of credit of witness by evidence as to character

The credit of a witness shall not be impeached by evidence of the opinion or
belief of another, formed on or derived from particular facts, but it may be
impeached by evidence as to the general reputation of the witness for veracity
and otherwise amongst his neighbours and others to whom his character may
be known.
Proof of Signatures and Handwriting
15 Attesting witnesses need not be produced in all cases

It shall not be necessary to prove by the attesting witness any instrument to the
validity of which attestation is not requisite, and such instrument may be
proved by admission, or otherwise, as if there had been no attesting witnesses
thereto.
16 Comparison of disputed writing

Comparison of a disputed writing with any writing proved to the satisfaction of
the Court to be genuine, shall be permitted to be made by witnesses, and such
writings, and the evidence of witnesses respecting the same, may be submitted
to the Court and to the jury (if there be a jury) as evidence of the genuineness or
otherwise of the writing in dispute.
17 Copies of Acts of Parliament and Acts of Tynwald

Copies of Acts of Parliament purporting to be printed by the printer to the
Crown, and copies of Acts of Tynwald purporting to be printed by authority,
shall be admitted as evidence thereof in every Court, without any proof being
given that such copies were so printed.
18 Copies of Acts of State, etc

Prima facie evidence of any act of State of the Government of this Island, or of
any public document or of any of the proceedings of the Tynwald Court or of
either branch thereof, may be given in all courts of justice, and in all legal
proceedings whatsoever, by the production of a copy of such act of State, public
document or proceedings purporting to be printed by authority and without
any proof being given that such copy was so printed.7

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19 Proof of acts of state, judgments etc, of Foreign States and Courts

All proclamations, treaties, and other acts of the Government of the United
Kingdom, or of any British possession, or of any foreign State, and all
judgments, decrees, orders, and other judicial proceedings of any Court of
Justice in the United Kingdom, in any British possession, or in any foreign State,
and all affidavits, depositions, pleadings, and other legal documents filed or
deposited in any such Court, may be proved in any Court either by examined
copies or by copies authenticated as hereinafter mentioned, that is to say: If the
document sought to be proved be a proclamation, treaty, or other act of State of
the United Kingdom, the authenticated copy to be admissible in evidence must
purport to be sealed with the seal of the department or office from which such
copy may issue; if the document sought to be proved be a proclamation, treaty,
or other act of State of a British possession, or of a foreign State, the
authenticated copy to be admissible in evidence must purport to be sealed with
the seal of the British possession or foreign State to which the original document
belongs; and if the document sought to be proved be a judgment, decree, order,
or other judicial proceeding of any such Court, or an affidavit, deposition,
pleading, or other legal document filed or deposited in any such Court, the
authenticated copy to be admissible in evidence must purport either to be
sealed with the seal of the Court to which the original document belongs, or, in
the event of such Court having no seal, to be signed by the judge, or if there be
more than one judge, by any one of the judges of the said Court, and such judge
shall attach to his signature a statement in writing on the said copy that the
Court whereof he is a judge has no seal; but if any of the aforesaid authenticated
copies shall purport to be sealed or signed as hereinbefore respectively directed,
the same shall respectively be admitted in evidence in every case in which the
original document could have been received in evidence, without any proof of
the seal where a seal is necessary, or of the signature, or of the truth of the
statement attached thereto, where such signature and statement are necessary,
or of the judicial character of the person appearing to have made such signature
and statement.
20 Proof of registers of vessels, etc

Every register of a vessel kept under any of the Acts relating, or which for the
time being may relate, to the registry of British vessels, may be proved in any
Court, either by the production of the original, or by an examined copy thereof,
purporting to be signed under the hand of the person having the charge of the
original; and every such register, or such copy of a register, and also every
certificate of registry granted under any Act relating, or which may relate, to the
registry of British vessels, and purporting to be signed as required by law, shall
be received in evidence in any Court as prima facie proof of all the matters
contained or recited in such register when the register, or such copy thereof as
aforesaid, is produced, and of all the matters contained or recited in or endorsed
on such certificate of registry when the said certificate is produced.8

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21 Proof of documents of corporations, companies, etc

Whenever, by any Act of Parliament, or Act of Tynwald, now in force or
hereafter to be in force, any certificate, official or public document, or document
or proceeding of any corporation, or of any joint-stock or other company, or any
certified copy of any document, bye-law, or entry in any register or other book,
or of any other proceeding, shall be receivable in evidence of any particular in
any Court, the same shall respectively be admitted in evidence, provided they
respectively purport to be sealed or impressed with a stamp, or sealed and
signed, or signed alone as required, or impressed with a stamp and signed, as
directed by the respective Acts made, or to be hereafter made, without any
proof of the seal or stamp, where a seal or stamp is necessary, or of the
signature, or of the official character of the person appearing to have signed the
same, and without any further proof thereof, in every case in which the original
could have been received in evidence.
22 Copies of public documents

Whenever any book, register, or other document is of such a public nature as to
be admissible in evidence on its mere production from the proper custody, and
no statute exists which renders its contents proveable by means of a copy, any
copy thereof, or extract therefrom, shall be admissible in evidence in any Court,
provided it be proved to be an examined copy or extract, or provided it purport
to be signed and certified as a true copy or extract by the officer to whose
custody the original is entrusted, and which officer is hereby required to furnish
such certified copy or extract to any person applying, at a reasonable time for
the same, upon payment of the sum of 5p; but provided that, if such copy or
extract exceed a page of sixteen lines, a sum of 3p shall be paid for each page of
sixteen lines beyond the first page, and also for the last page, if it contain a less
number of lines.9

23 Certificate of conviction or acquittal of a person charged with an

indictable offence

Whenever, in any cause whatever, it may be necessary to prove the trial and
conviction or acquittal of any person charged with any indictable offence, it
shall not be necessary to produce the record of the conviction or acquittal of
such person, or a copy thereof, but it shall be sufficient that it be certified or
purport to be certified under the hand of the Clerk of the Rolls, or other officer
having the custody of the records of the Court where such conviction or
acquittal took place, that the paper produced is a copy of the record of the
indictment, trial, conviction, and judgment or acquittal, as the case may be,
omitting the formal parts thereof.
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24 Act to be cumulative

The provisions of this Act shall be deemed to be in addition to, and not in
derogation of, any powers of proving documents given by any existing statute,
or existing at Common Law.
25 Certifying false documents, etc

If any officer authorised or required by this Act to furnish any certified copies or
extracts shall wilfully certify any document as being a true copy or extract,
knowing that the same is not a true copy or extract, as the case may be, he shall
be guilty of a misdemeanour, and shall be liable on conviction to imprisonment
for any term not exceeding eighteen months.
26 Forging seal, stamp, or signature, felony

If any person shall forge the seal, stamp, or signature, of any certificate, or
document of any kind in this Act mentioned or referred to, or of any certified
copy of any such document, or shall tender in evidence any such certificate or
document, or any certified copy of any such document, with a false or
counterfeit seal, stamp, or signature thereto, knowing the same to be false or
counterfeit; or if any person shall forge the signature of any judge to any order,
decree, certificate, or other judicial or official document, or shall tender in
evidence any order, decree, certificate, or other judicial or official document,
with a false or counterfeit signature of any such judge as aforesaid thereto,
knowing the same to be false or counterfeit; or if any person shall print any
copy of any Act of Parliament, Act of Tynwald, or other document, which copy
shall falsely purport to have been printed by the printers to the Crown, or to be
printed by authority, or if any person shall tender in evidence any such copy,
knowing that the same was not printed by authority or by the persons by whom
it so purports to have been printed, every such person shall be guilty of felony,
and shall be liable on conviction on information to custody for a term not
exceeding 5 years: Provided also, that whenever any such certificate or
document shall have been received in evidence by virtue of this Act, the Court
which shall have admitted the same shall, on the request of any party against
whom the same is so received, be authorised, at its own discretion, to direct that
the same shall be impounded, and be kept in the custody of some officer of the
Court or other proper person, for such period, and subject to such conditions as
to the said Court shall seem meet.10

Admission of Documents
27 Admission of Documents

Any party in a cause may call on any other party in the cause by notice to admit
any document, saving all just exceptions; and in case of refusal or neglect to
admit, the costs of proving the document shall be paid by the party so
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neglecting or refusing, whatever the result of the cause may be, unless at the
hearing or trial the Court shall certify that the refusal to admit was reasonable;
and no costs of proving any document shall be allowed unless such notice be
given, except in cases where the omission to give the notice is, in the opinion of
the Court, or of the taxing officer, a saving of expense.
28 Proof of admissions

An affidavit of the attorney in the cause, or of his clerk, or of the agent of the
party, of the due signature of any admissions made in pursuance of such notice
and annexed to the affidavit, shall be in all cases sufficient evidence of such
admissions.
29 Proof of notice to produce

An affidavit of the attorney in the cause, or of his clerk, or of the agent of the
party, of the service of any notice to produce, in respect of which notice to admit
shall have been given, and of the time when it was served, with a copy of such
notice to produce annexed to such affidavit, shall be sufficient evidence of the
service of the original of such notice, and of the time when it was served.
30 to 38 [Repealed]
11

Affidavits, etc.
39 Governor may appoint Commissioners for taking affidavits

It shall be lawful for the Governor from time to time to appoint any persons
practising as solicitors or attorneys (by whatever name designated) in the
United Kingdom, or in the Channel Islands, or in any British possession, to
administer oaths to affidavits, and to take declarations and affirmations to be
filed or used in the Courts of this Island, which persons shall be entitled to a fee
of 8p for each affidavit, declaration, or affirmation sworn or taken before them,
and 5p for each exhibit referred to in any such affidavit, declaration, or
affirmation, and marked as such, and which persons shall be styled,
‘Commissioners for taking Oaths in the Courts of the Isle of Man’.12

40 How answers, affidavits, etc, may be sworn

Answers, affidavits, declarations, and affirmations to be used in any Court or
matter in this Island may be sworn and taken in this Island before any Court, or
before any judge or officer of any Court having power to administer oaths, or
before any High-Bailiff, Notary Public or Commissioner for Oaths or Justice of
the Peace; in the United Kingdom and in any British possession, before any
Court, judge, magistrate, notary public, or any other person lawfully authorised
to administer oaths in the place where the oath may be administered, or the
declaration or affirmation taken, or before a Commissioner for taking oaths in
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the Courts of the Isle of Man; and in foreign parts out of Her Majesty’s
dominions, before any ambassador, envoy, minister, charge d’affaires, or
secretary of embassy or of legation, British consul-general, consul, vice-consul,
acting-consul, pro-consul, or consular agent, or before any foreign local judge,
magistrate, or other person having locally authority to administer an oath; and
judicial notice shall be taken of the seal or signature (as the case may be) of any
such Court, judge, or other person in this section referred to: Provided always,
that nothing herein contained shall prejudice or affect the power of any Court
having authority in that behalf to issue commissions for the examination of
witnesses, or for other purposes.13

41 Special reports by examiners

It shall be lawful for every Commissioner, or other person authorised by any
Court, having power in that behalf by commission, rule, or order, to take the
examination of witnesses, and he is hereby required to make, if need be, a
special report to the Court in which the cause may be depending touching such
examination, and the conduct or absence of any witness or other person therein
or relating thereto; and the Court is hereby authorised to institute such
proceedings, and make such order upon such report as justice may require, and
as may be instituted and made in any case of contempt of the Court.
Oaths, Affirmations, etc.
42 Courts may administer oaths

Every Court is hereby empowered to administer an oath to all such witnesses as
are legally called before it.
43 and 44 [Repealed]
14

45 [Repealed]
15

46 In legal proceedings not necessary to state that jurors had made

affirmation

Wherever, in any legal proceedings, whatever legal proceedings may be set out,
it shall not be necessary to specify that any particular persons who acted as
jurors had made affirmation instead of oath, but it may be stated that they
served as jurymen in the same manner as if no Act had passed for enabling
persons to serve as jurymen without oath.
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Declarations in lieu of Voluntary Oaths
47 Declarations in lieu of voluntary oaths

In order to the abolition of unnecessary oaths, it shall be lawful for any High-
Bailiff, Justice of the Peace, or other officer now authorised to administer an
oath, to take and receive the declaration of any person voluntarily making the
same before him, in the following form- that is to say:
‘I, C.D., do solemnly and sincerely declare that , and
I make this solemn declaration conscientiously believing the same to be
true.’
And every such declaration shall be known and may be described as a
statutory declaration.
48 [Repealed]
16

49 Proviso as to previous suits

Nothing in this Act shall apply to or affect any suit, action, or proceeding
brought or commenced before the promulgation of this Act.
The Evidence Act 1871 Endnotes


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ENDNOTES

Table of Legislation History

Legislation Year and No Commencement






Table of Renumbered Provisions

Original Current






Table of Endnote References

1
Definition of ‘Superior Court’ substituted by High Court Act 1991 Sch 3.
See General Note. 2
S 5 repealed by Statute Law Revision Act 1989 Sch 2. 3
S 6 repealed by Criminal Evidence Act 1946 s 7 and inserted by Criminal Justice Act
1963 Sch 4. 4
S 7 repealed by Criminal Justice Act 1991 Sch 5. 5
S 8 repealed by Civil Evidence Act 1973 s 16. 6
S 9 repealed by Statute Law Revision Act 1989 Sch 2. 7
S 18 substituted by Evidence Act 1965 s 1. 8
S 20 amended by Statute Law Revision Act 1997 Sch 2. 9
S 22 amended by Decimal Currency (Isle of Man) Act 1970 s 9. 10
S 26 amended by Statute Law Revision Act 1997 Sch 1. 11
Ss 30 to 38 repealed by Administration of Justice Act 1951 Sch. 12
S 39 amended by Decimal Currency (Isle of Man) Act 1970 s 9. 13
S 40 amended by Commissioners for Oaths Act 1962 s 6. 14
Ss 43 and 44 repealed by Administration of JustIce Act 2008 s 25(2). 15
S 45 repealed by Statute Law Revision Act 1983 Sch 2. 16
S 48 repealed by Perjury Act 1952 Sch.