Note 107 — BOOK THE SECOND 1810 TO JUNE, 1812

In the course of the cause a question arose whether the declaration or deposition of the late Lord Berkeley could be admitted in evidence. It was referred to the judges; and their solemn opinion was delivered that it could not. Never was the force of a phrase more strongly exemplified than on that occasion. Mr. Justice Laurence drew a distinction between declarations made before and after any question had been raised on the subject. In stating the distinction, he borrowed a Latin phrase from the Civil Law, and said that a declaration post litem motam could not be admitted. Lis mota occurred in every fourth or fifth sentence of every opinion delivered afterwards by the learned judges. The Lords looked wise, and acknowledged in whispers to each other a lis mota altered the whole nature of a declaration. The declaration in question was, on this principle, rejected. Yet the phrase lis mota, which seemed to awaken all the recollections of the learned, was then mentioned for the first time, and had hitherto been utterly unknown to our law and our lawyers. Even the principle, though perhaps not unreasonable, had never, or at least very seldom, if ever, been recognised in our Courts.—V.H.