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other collateral proofs of fairness and regularity (s), the best evidence that can then be produced. However this dangerous species of evidence is not carried so far in England as abroad (t); where a man's own books of accounts, by a distortion of the civil law (which seems to have meant the same thing as is practised with us) (u) with the suppletory oath of *the merchant, amount at all times to full proof (26). But as [*369] this kind of evidence, even thus regulated, would be much too hard upon the buyer at any long distance of time, the statute 7 Jac. I. c. 12. (the penners of which seem to have imagined that the books of themselves were evidence at common law) confines this species of proof to such transactions as have happened within one year before the action brought ; unless between merchant and merchant in the usual intercourse of trade. For accounts of so recent a date, if erroneous, may more easily be unravelled and adjusted (27).
With regard to parol evidence, or witnesses; it must first be remembered, that there is a process to bring them in by writ of subpoena ad testificandum : which commands them, laying aside all pretences and excuses, to appear at the trial on pain of 1001. to be forfeited to the king; to which the statute 5 Eliz. c. 9. has added a penalty of 201..to the party aggrieved, and damages equivalent to the loss sustained by want of his evidence. But no witness, unless his reasonable expenses be tendered him, is bound to appear at all; nor, if he appears, is he bound to give evidence till such charges are actually paid him ; except he resides within the bills of mortality, and is summoned to give evidence within the same. This compulsory process, to bring in unwilling witnesses, and the additional terrors of an attachment in case of disobedience, are of excellent use in the thorough investigation of truth (28): and, upon the same principle, in the Athenian courts, the witnesses who were summoned to attend the trial had the choice of three things ; either to swear to the truth of the fact in question, to deny or abjure it, or else to pay a fine of a thousand drachmas (v).
All witnesses, of whatever religion or country, that have the use of their reason (29), are to be received and examined, except such as are infamous,
(8) Salk. 285.
(u) Instrumenta domestica, seu adnotatio, si non aliis quoque adminiculis adjuventur, ad probationem sola non sufficiunt. (Cod. 4. 19. 5.) Nam cr
emplo perniciosum est, ut ei scripturae credatur, qua unusquisque sibi adnotatione propria debitorem constituit. (Ibid. 1.7.)
(v) Pott. Antiq. b. 1, c. 21.
(26) In New York, where there have been court will not grant an attachment against a regular dealings between the parties, and it is witness, unless all the necessary expenses of proved that the merchant keeps honest and the journey to and from, and the witness's fair books of account, and has no clerk, and stay at the place of trial, be tendered at the that he has furnished some of the articles, his time of serving the subpoena. 1 H. Bl. 49. books of account may be received in evidence. 1 Meriv. 191. 13 East, 15. Still the court (12 Johns. R. 461.)
will not enter into nice calculations of ex(27) The entries in the book of a person pense, but consider whether the non-attenddeceased, not connected with the parties, are ance originated in obstinacy or not. 2 Stra. of no more avail than hearsay. But the books 1150. The same rale prevails in the case of of an incumbent, respecting the lithes of the witnesses bona fide brought from abroad. 1 parish, are evidence for his successor. 5 T. Marsh. 563. 4 Taunt. 699. 6 ib. 88. A wit. R. 123. 2 Ves. 43.
ness is not in general entitled to remuneration (28) A copy of the writ, or the substance for loss of time, 1 B. & B. 515. 5 M. & S. thereof, 5 Mod. 355. Cro. Car. 540. should be 156; though in some instances it is allowed served personally on each witness, and the to attornies and medical practitioners. Ib. original shewn to him. The usual mode of 159. The expenses of making scientific exproceeding against witnesses, for disobedience periments, with a view to evidence, are not, of the writ of subpoena, is by the summary allowable. 3 B. & B. 72. process of an attachment.for a contempt, 2 (29) A Mahometan may be sworn upon the Stra. 1054. Cowp. 386. Doug. 561 ; but the Alcoran, and a Gentoo according to the cus. VOL. II.
or such as are interested in the event of the cause. All others are competent
witnesses; though the jury from other circumstances will judge [*370] of their credibility (30). *Infamous persons are such as may be
challenged as jurors, propter delictum ; and therefore never shall be admitted to give evidence to inform that jury, with whom they were too scandalous to associate. Interested witnesses may be examined upon a voir dire, if suspected to be secretly concerned in the event; or their interest may be proved in court. Which last is the only method of supporting an objection to the former class : for no man is to be examined to prove tom of India, and their evidence may be re- (30) “ The old cases upon the competency ceived even in a criminal case. Leach's Ca- of witnesses have gone' upon very subtle his own infamy (31). And no counsel, attorney, or other person, intrusted with the secrets of the cause by the party himself shall be compelled, or perhaps allowed, to give evidence of such conversation or matters of privacy, as came to his knowledge by virtue of such trust and confidence (v) (32): but he may be examined as to mere matters of fact, as the execution of a deed or the-like, which might have come to his knowledge without being intrusted in the cause.
I Ark. 21. But an Atheist, or a per. grounds. But of late years the courts have son who has no belief or notion of a God, or endeavoured, as far as possible, consistent with a future state of rewards and punishments, authorities, to let the objection go lo the ought not in any instance to be admitted as a credit, rather than to the competency of a witwitness. 1. Atk. 45. B. N. P. 202. See ness.” Lord Mansfield, 1 T. R. 300. Peake Rep. 11, where Buller, J., held that the It is now established, that if a witness does proper question to be asked of a witness is, not immediately gain or lose by the event of whether he believes in God, the obligation of the cause, and if the verdict in the cause canan oath, and in a future state of rewards and not be evidence either for or against him in punishments.
any other suit, be shall be admitted as a comI have known a witness rejected, and hissed petent witness, though the circumstances of out of court, who declared that he doubted of ihe case may in soine degree lessen his credi. the existence of a God, and a future state. bility. 3 T. R. 27. The interest must be a But I have since heard a learned judge de: present, certain, vested interest, and not unclare at nisi prius, that the judges had resolved certain or contingent, Doug. 134. I T. R. not to permit adult witnesses to be interrogat. 163. 1 P. Wms. 287: therefore the heir aped respecting their belief of a Deity and a fu- parent is competent in support of the claim of lure state. It is probably more conducive to the ancestor, though the remainder-man, harthe course of justice, that this should be pre. ing a vested interest, is incompetent. Salk. sumed till the contrary is proved. And the 283. Ld. Raym. 724. A clerk of the commost religious witness may be scandalized by pany of wire-drawers is competent, in an acthe imputation, which the very question con- tion against a person for acting as an assistant, Veys.
although the verdict might cause the defendQuakers, who refuse to take an oath under ant to be sworn, upon which the clerk would any form, by the 7 & 8 W. c. 34. are permitted obtain a fee. See Stark. on Ev. p. 4. 745. in judicial proceedings to make a solemn affir- A servant of a tradesman, from necessity, mation; and if such affirmation, like an oath, is permitted in an action by his master to is proved to be false, they are subject to the prove the delivery of goods, though he himself penalties of perjury. But this does not ex. may have purloined them; but in an action iend to criminal cases. 8 Geo. I. c. 6. 22 brought against the master for the negligence Geo. II. c. 30. and c. 46.
of his servant, the servant cannot be a witness Their affirmations are received in penal nc- for his master without a release ; for his mas. tions, as for bribery. See Atcheson v. Eve. ter may afterwards have his action against the ritt, Cowp. 382. where this subject is largely servant, and the verdict recovered against him discussed.
may be given in evidence in that action to Lord Mansfield lays down generally that an prove the damage which the master has sus. affirmation is not refused where the action, iained. 4 T. R. 589. though in form of a criminal action, in sub- By the 46 Geo. III. c. 37. it is enacted, that stance is a mere action between party and a witness cannot refuse to answer a question party. Lord Mansfeld there laments that relevant to the matter in issue, the answering such an exception had been made by the le. of which has no tendency to accuse himself, gislature.
or to expose him to a penalty or forfeiture, by In New York, the test of the competency reason only that the answer to such question of a witness is his belief in the existence may establish, or tend to establish, that he of a Supreme Being, who will punish false owes a debi or is subject to a civil suit. + swearing, but the witness cannot be inter- This statute was passed, because upon a rogated on this subject : his unbelief must be point which arose at lord Melville's impeachproved by others, unless the question is put ment, the high living authorities of the law to an infant, or one apparently of weak intel. were nearly divided, whether a witness was lect, to ascertain his capacity of mind. (2 R. compellable to answer such a question. But S. 408, 0. 87.) Any person not believing in surely it was agreeably to the law of England, the christian religion is sworn according to that a man should be compelled to be honest, the ceremonies of his peculiar religion. (Id. and where, if he avoided ihe question, injus$ 80.). All who have scruples against taking tice would be done both between the parties bean oath may affirm in all cases. (Id. 401, fore the court, and afterwards between the wit. $84.)
ness and some other party. + The same provision is made 2 R. S. 405, 971
One witness (if credible) is sufficient evidence to a jury of any single facts, though undoubtedly the concurrence of two or more corroborates the proof. Yet our law considers that there are many transactions to which only one person is privy; and therefore does not always demand the testimony of two, as the civil law universally requires. “Unius responsio testis omnino non audiatur (w).” To extricate itself out of which absurdity, the modern practice of the civil law courts has plunged itself into another. For, as they do not allow a less number than two witnesses to the plena probatio, they call the testimony of one, though never so clear and positive, semi-plena probatio only, on whom no sentence can be founded. To make up therefore the necessary complement of witnesses, when they have one only to a single fact, they admit the party himself (plaintiff or defendant) to be examined in his own behalf; and administer to him what is called the suppletory oath ; and, if his evidence happens to be in his own favour, this immediately converts the half proof into a whole one. By this ingenious device satisfying at once the forms of the Roman law, and [*371] acknowledging the superior reasonableness of the law of Eng
(v) Law of nisi prius, 267.
(10) Cod. 4. 20. 9.
(31) A witness may be examined with re. prove that he had no interest in the vessel. gard to his own infamy, if the confession of Cited in 1 T. R. 301. The parents may give it does not subject him to any future punish- evidence to bastardize their issue, 6 T. R. ment; as a witness may be asked if he has 330, 331. or to prove the legitimacy, ib.; not stood in the pillory for perjury, 4. T. R. though it is said the sole evidence of the 440 ; but he cannot be entirely rejected as a mother, a married woman, shall not be suffi. witness without the production of the record cient to bastardize her child. B. R. H. 79. of conviction, by which he is rendered incom- 1 Wils. 340. petent. 8 East, 77. Though it has been held, 8
In New York, conviction for a felony, and in some other cases, that a witness is not for that alone, incapacitates a person from bound to answer such questions. 4 St. Tri. being a witness on account of infamy : the 748. 1 Salk. 153. 4 Esp. 225. 242. It is incapacity may be removed by a pardon. (2 quite clear that a man is not bound to answer R. S. 701, § 23.) any questions, either in a court of law or (32) But the principles and policy of this equity, which may tend to criminate himself, rule restrain it to that confidence only, which or which may render him liable to a penalty. is placed in a counsel or solicitor, and which Stra. 444. 3 Taunt. 424. 4 St. Tri. 6. 6ih. must necessarily be inviolable, where the use 619.
16. Ves. 242. 2 Ld. Raym. 1088. Mit- of advocates and legal assistants is admitted. ford's Ch. Pl. 157. As to questions which But the purposes of public justice supersede merely disgrace the witness, there is some the delicacy of every other species of condifficulty. See Stark, on Ev. pt. 2. 139. Still fidential communication. In the trial of the a witness is in no case legally incompetent to duchess of Kingston, it was determined that allege his own turpitude, or to give evidence a friend might be bound to disclose, if neceswhich involves his own infamy, 2 Stark. Rep. sary in a court of justice, secrets of the most 116. 8 East, 78. 11 East. 309; or impeaches sacred nature which one sex could repose in his own solemn acts, 3 M. & S. 244. 7 T. the other. And that a surgeon was bound to R. 604 ; unless he be rendered incompetent communicate any information whatever, which by a legal interest in the event of the cause, he was possessed of in consequence of his or in the record. It seems to be an universal professional attendance. Il St. Tr. 243. 246. rule, that a particeps criminis may be examined and those secrets only, communicated to a as a witness in both civil and criminal cases, counsel or attorney, are inviolable in a court provided he has not been incapacitated by a of justice, which have been intrusted to them conviction of crime. As a clerk who had laid whilst acting in their respective characters to out money which he had embezzled in illegal the party as their client. 4 T. R. 431. 753. insurances, was held to be a competent witness In New York, physicians, surgeons, and for the master against the insurer. Cowp. 197. clergymen, are not now allowed to disclose So a man who has pretended to convey lands matters confided to them in their professional to another, may prove that he had no title, Ld. character. (2 R. S. 406, 9 72, &c.) Raym. 1008. À co-assignce of a ship may
land : which permits one witness to be sufficient where no more are to be had : &nd, to avoid all temptations of perjury, lays it down as an invariable rule, that nemo testis esse debet in propria causa (33).
Positive proof is always required, where from the nature of the case it appears it might possibly have been had. But next to positive proof, cir. cumstantial evidence or the doctrine of presumptions?“must take place ; for when the fact itself cannot be demonstratively evinced, that which comes nearest to the proof of the fact is the proof of such circumstances which either necessarily, or usually, attend such facts; and these are called presumptions, which are only to be relied upon till the contrary be actually proved. Stabitur praesumptioni donec probetur in contrarium (r). Violent presumption is many times equal to full proof (y); for there those circumstances appear, which necessarily attend the fact. As if a landlord sues for rent due at michaelmas 1754, and the tenant cannot prove the payment, but produces an acquittance for rent due at a subsequent time, in full of all demands, this is a violent presumption of his having paid the former rent, and is equivalent to full proof; for though the actual payment is not proved, yet the acquittance in full of all demands is proved, which could not be without such payment; and it therefore induces so forcible a presumption, that 'no proof shall be admitted to the contrary (2) (34).
(a) Co Litt. 373. (y) Ibid. 6.
(3) Gilb. evid. 161.
(33) In equity no decree can be made on fine has been levied, it will be implied that it the oath of one witness against the defend has been levied with proclamations, 3 Co. 86 ant's answer on vath, Vent. 161. 3 Ch. C. b. unless rebutted, Bul. N. P. 229. and some 123. 69; and one witness is not sufficient other like instances; but the presumption in against the husband, although it be supported favour of innocence is, it has been held, too by the answer of the wise, for she cannot be strong to be overcome by any artificial intend. a witness against her husband. 2 Ib. 30. 3 ment of law. 2 B. & A. 386. 2dly. PresumpP. Wms. 238. But a decree may be made on tions of law and fact, as that adverse enjoy. the evidenee of a single witness, where the ment unquestioned for twenty years, of an evidence of the other party is falsified, or dis- incorporeal hereditament, presumes a grant ; credited by strong circumstances. 2 Vern. that a bond has been satisfied upon which no 554. 2 Aik. 19. 3 ib. 419. 1 Bro. Ch. C. interest has been paid, nor other acknowledg. 52. In high treason, when it works corrup- ment made of its existence for a like period, tion of blood, two witnesses are necesssary, 2 Stra. 826. 2 Ld. Raym. 1370 ; that there by 7 W. 3. c. 3. So two are necessary in per. has been a conversion in the case of trover, jury. 10 Mod. 195. post, 4 book, 150. In all where the defendant refuses to deliver them other cases the effect of admissible evidence, up. 34. Natural presumptions. It is the pe. whether given by one or more witnesses, is culiar province of the jury to deal with presolely for the consideration of the jury. See sumptions of this class; yet where the parti. Stark. on Evid. p. 3. 398, 9.
cular facts are inseparably connected accord. (34) Presumplions are of three kinds ; Ist, ing to the usual course of nature, the courts Legal presumptions, made by the law itself; themselves will draw the inference, as when 2dly. Legal presuinptions to be made by a a child has been born within a few weeks after jury, of law and fact; 3dly, Natural presump- access of the husband, its bastardy will be in. tions, or presumptions of mere fact.
ferred without the aid of a jury. & East. 193. 1st. Legal presumptions are in some cases All cases of circumstantial evidence may be absolute, as that a' bond or other specially more or less within this class. And it is obwas executed upon a good consideration, t vious that the case put in the text belongs to Burr. 2225. so long as the deed or bond re- this division, upon which Mr. Christian has mains unimpeached; but it may be impeached made the following remark : on the ground of fraud, and then the considera- “ This can scarcely be correct: I should tion becomes the subject of inquiry. But in conceive that proof may be admitted to repel the case of bills of exchange, the presumption, all presumptions whatever; and even if a rethat it was accepted for a good consideration, ceipt should be produced expressly for the rent may be rebutted by evidence. So where a of ihe year 1754, still the landlorú might shew
+ In New York, the seal is now only pri- 406. 977): but notice must be given by the ma facie evidence of consideration. (2 R. s. party denying the consideration. (Id. Ở 78.)
(74) See Hov. n. (74) at the end of the Vol. B. III.
Probable presumption, arising from such circumstances as usually attend the fact, hath also its due weight: as if, in a suit for rent due in 1754, the tenant proves the payment of the rent due in 1755 ; this will prevail to exonerate the tenant (a), unless it be clearly shewn that the rent of 1754 was retained for some special reason, or that there was some fraud or mistake: for otherwise it will be presumed to have been paid before that in 1755, as it is most usual to receive first the rents of longest standing. Light, or rash, presumptions have no weight or validity at all (35).
* The oath administered to the witness is not only that what [*372] he deposes shall be true, but that he shall also depose the whole truth : so that he is not to conceal any part of what he knows, whether interrogated particularly to that point or not. And all this evidence is to be given in open court, in the presence of the parties, their attorneys, the counsel, and all by-standers, and before the judge and jury : each party having liberty to accept to its competency, which acceptions are publicly stated, and by the judge are openly and publicly allowed or disallowed, ia the face of the country: which must curb any secret bias or partiality that might arise in his own breast. And if, either in his directions or decisions, he mistakes the law by ignorance, inadvertence, or design, the counsel on either side may require him publicly to seal a bill of exceptions ; stating the point wherein he is supposed to err: and this he is obliged to seal by statute Westm. 2. 13 Ed. I. c. 31. or, if he refuses so to do, the party may have a compulsory writ against him (6), commanding him to seal it, if the fact alleged be truly stated : and if he returns, that the fact is untruly stated, when the case is otherwise, an action will lie against him for making a false return. This bill of exceptions is in the nature of an appeal; examinable, not in the court out of which the record issues for the trial at nisi prius, but in the next immediate superior court, upon a writ of error, after judgment given in the court below. But a demurrer to evidence shall be determined by the court, out of which the record is sent. This happens, where a record or other matter is produced in evidence, concerning the legal consequences of which there arises a doubt in law: in which case the adverse party may if he pleases demur to the whole evidence; which admits the truth of every fact that has been alleged, but denies the sufficiency of them all in point of law to maintain or overthrow the issue (c); which draws the question of law from the cognizance of the jury, to be decided (as it ought) by the court. But neither these demurrers to evidence, nor the bills of exceptions, are at present so much 'in [*373] * use as formerly; since the more frequent extension of the discretionary powers of the court in granting a new trial, which is now very commonly had for the misdirection of the judge at nisi prius. This open examination of witnesses, viva voce, in the presence of all
(c) Co. Litt. 72. 5 Rep. 104. (b) Reg. Br. 182. 2 Inst. 487. that it had been obtained by mistake or fraud, which a fair inference can be drawn, though and that no rent had been received at the time.” alone it would be too slight to support the ver. In a case of a similar nature tried before Ab- dict of the jury, yet it may corroborate other bott, C. J. at Guildhall, A. D. 1824, the land- testimony, and a number of such presumptions ord adduced evidence to shew the mistake, may become of importance. Possunt diversa and recovered.
genera ita conjungi, ut quæ singula non nocerent, (35) It is difficult to say what is a light and ea universa tanquam grando reum opprimant, rash presumption, if it is any presumption at Matthæus de Crim. -Jl. Any circumstance may be proved from
(a) Co. Litt. 373.