Imatges de pÓgina


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the jury.—2. A second ground of incom- he may not believe in a future state, or if petency is the want of religious belief. he does believe in a future state, that he The law, in order to justify the adminis- will be liable to any punishment in such tration of an oath, or a solemn equivalent state. This latter opinion was held by affirmation, requires that the party should lord chief justice Willes, in the case of believe, that it is obligatory upon his con- Omichund vs. Barker (Willes' R. 538), and science, and that he becomes thus bound he is himself of very high authority." But to tell the truth But there is no certain upon such a question, where very able sanction or obligatory force upon the con- judges have differed, it becomes us to say science of a man, unless he believes, that no more than that the question may still his telling or not telling the truth, will, at be deemed unsettled. It was formerly a all events, make him accountable to a Su- rule, that infidels, or disbelievers in Chrispreme Being for his conduct; and that, if tianity, such as Jews, Mohammedans, and he tells a falsehood, the Supreme Being the various kinds of heathen, were not will punish hiin accordingly. It is not competent witnesses. But that rule has sufficient, by the common law, that a been abrogated for a considerable length witness believes himself bound to speak of time; and it now matters not whether a the truth from a regard to his own char- person be a Jew or a Christian, a Mohamacter and the opinion of the public, or his medan or a Hindoo, if he believes in a God, own permanent interests, or the civil and in his responsibleness to him for his punishments annexed to perjury. Such conduct, and that he will be rewarded or motives (as has been justly said) have punished according to his conduct, he is a their influence, and may be brought in competent witness. This has been firmly aid of religious obligation ; but they do not settled in our law, at least since the great supply its place. Indeed, they are of so case of Omichund vs. Barker (Willes' R. uncertain a nature, so liable to be pervert- 538), in 1744–5. But atheists, and such ined to wrong purposes, so infirm in their fidels as profess no religion, or do not beoperation, and so mixed up with other lieve in any responsibleness to any Supreme motives, of present reward, of future fa- Being for their actions, are incompetent witvor, of hatred, or kindness, or prejudice, nesses.-3. A third ground of incompethat they do not afford a solid foundation tency is infamy of character. But this inupon which to rest our confidence. But famy is not that, which is morally attached if a man does believe in a superintending to a man for his private profligacy and disProvidence, and in his responsibleness to soluteness. That is not sufficient to exthat Providence for all his conduct; if he clude him as a witness, though it may go feels that the eye of God can search his far to diminish his credibility. But the inthoughts, and that he cannot escape his famy, of which we speak, is that which renotice or his power, but will receive at sults from a conviction of some crime deemhis hands according to his deeds, there is ed, in the law, infamous. It is not sufficient a most solemn and affecting influence up- that a party has been convicted and punishon his mind. He may not always, with ed for a crime; nor that the punishment itthis belief, avoid falsehood; but he has the self is deemed by the public degrading and highest motives to do so. Our law, there- infamous. But the offence must, in its own fore, requires that a person, to be a wit- nature, be infamous. All capital offences ness, should believe in the existence of a and felonies are deemed infamous; all Supreme God, to whom he is accountable offences importing fraud and gross mora) for his actions. The rule is usually laid depravity ; every species of the crimen down, in our books, with this addition-- falsi, such as forgery, perjury, subornathat he should also believe in a future tion of perjury, piracy, bribery, conspirastate of rewards and punishments. And cy to accuse another of a crime or to it has been accordingly held by some commit a fraud, swindling, cheating, grand judges, that if he does not believe in a larceny, and uttering counterfeit paper. state of punishment, but only of reward, Many other offences, though very reprein a future world, he is not a competent hensible in law, as well as in morals, do witness, although he may believe in pun- not carry with them this disqualification; ishment in the present world, for all such as libels, riots, assaults and batteries, crimes, by the order of Providence. But and other subordinate misdemeanors. A this doctrine has been doubted and denied pardon will, in cases where incompetency by other judges, who think, that if a wit- is thus a consequence of the conviction, ness believes in a God, and that he will restore the party to his competency, at punish bim in this world, if he swears whatever time it may be granted; and falsely, he is admissible, notwithstanding even though the party has suffered under


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it an infamous punishment. And it seems witness is really interested in the event of that our courts will not exclude a party the suit, he is incompetent, although he as a witness upon a mere conviction of supposes himself not to be. It would an infamous crime in another state or seem to follow, that if he believed himself country, though it will form a strong ob- interested, and he were, in fact, not so, he jection to his credit. Accomplices in an ought to be admitted as a witness. This infainous crime, who have not been con- is the English rule; but, in some of the victed, but who confess their own guilt, American courts, it has been otherwise are not on that account disabled from give adjudged. A mere honorary engageing testimony; but of course it is received ment will not exclude a witness. If the with great distrust and caution, and it verdict or record would secure any adrarely happens, that any conviction takes vantage to the witness, or repel a charge place upon such testimony standing alone against him, or a claim upon him, in a and uncorroborated.4. A fourth ground fürure proceeding, he is incompetent. A of incompetency is on account of interest. party to the record is generally incompeIt is, in our law, a general rule, that all tent. So a person liable to costs; so bail witnesses, interested in the event of a in a suit ; so a servant, in an action against cause, that is, such persons as must gain his master for negligence or miscouduct or lose by the event, are incompetent to of the servant; so a tenant, to establish his give testimony in favor of the party, to landlord's title; so a devisee in a will, to whom their interest inclines them, but not prove the will; so a creditor, to increase incompetent to give testimony for the oth- the fund of a bankrupt's estate. These er party. The interest, however, required are merely put by way of example. If a to exclude a witness, must be a legal in- witness lave an interest on both sides, so terest (that is, a fixed interest, which is that, on the whole, he stands indifferent, recognised in our jurisprudence as such), he is admissible. So, although he is inand not merely a prejudice, affection or bias, terested, if that interest is released or exor relationship, though these may go to his tinguished iif any manner, his competencredit. In respect to relationship, a hus- cy is restored. So where the witness band and wife cannot be witnesses for or offers to release his interest and the other against each other. They cannot be wit- party refuses. A member of a corporanesses for each other, because their inter- tion is, generally, incompetent to testify in ests are, in legal contemplation, one and a suit, brought by the corporation. But the same; nor, generally, against each this rule has been, in many of the Ameriother, because it would destroy the neces- can states, abolished by express legislasary confidence between them, which the tion. There are certain exceptions to the law deems of primary and fundamental rule, as to the incompetency of witnesses importance to social life. But all other on account of interest, which have been relations may be witnesses, for or against recognised in our law, and which seem each other, such as father and child, mas- justified by a moral necessity. Thus, ter and servant, guardian and ward. But agents, factors and servants are, generally, an attorney or counsellor cannot be a wit- if not universally, admissible as witnesses ness against his client as to any matter of for their principals, as to things within the fact, which he derived from his client in scope of their agency. So persons entiprofessional confidence. This proceeds tled to a reward for conviction of other upon a large ground of public policy. If persons of a crime. So informers entitled the interest be strictly a legal interest, it is to share in a penalty; but this is provided immaterial whether it is great or small. for by positive law. So a party robbed, in If it be not a legal interest, it matters not an action against the hundred (q. v.) for how strong the bias of the party may be, his loss; for otherwise he might not be for that goes to his credit only. It is not able to prove the robbery, which is usually sufficient, that he has an interest in the a secret thing. So in America the party question, or has a case of a like nature; whose name is forged, on an indictment he must have an interest in the event of for forgery; but the rule is otherwise in the cause, or it must be such that the ver- England. The rule of allowing interested dict may be given in evidence, for or testimony, er necessitate, is to be underugainst hiin. The interest, also, required stood not of a necessity in the particular to exclude a witness, must be a fixed, case, but of a general necessity in cases present interest, and not a remote, possi- belonging to that class.—If a witness be ble. or contingent interest

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leprive the party of his testimony, as by on other persons.—2. Secondly; in respect making a bet, or wager on the event; to confessions. The common law seems to but it is otherwise if the interest be cre- have taken a distinction as to the effect of uted by act of law, or the act of the par- confessions in civil cases and in criminal caty by whom he is called.—This may suf- ses. Generally speaking, they are evidence fice as a general outline of the law, as to in civil cases as admissions. In criminal incompetency on account of interest. And cases, a free, voluntary confession by a party, cases often arise on this subject, of ex- of his guilt

, is also evidence, and is sufitreme nicety and subtlety, where the ap- cient, per se, to found a conviction ; but plication of the rule is full of doubt and where a confession has been obtained by difficulty. But the consideration of such duress, or threats, or by a promise of parpoints properly belongs to a full treatise don by an agent of the government or the on evidence. In concluding this head, prosecutor, and the promise is not comas to witnesses, we may advert to another plied with, the confession cannot be given exception, which has been extensively, in evidence. These cases seem clear, but not universally, adopted in America. But where a party has made a confession It is, that a party to negotiable paper shall by the advice of a friend, or upon the sugnot be allowed as a witness to prove its gestion of a stranger, who had no authororiginal invalidity, although he may be a ity to promise any indulgence or pardon, witness to establish any subsequent fact. there seems some contrariety of opinion, The same rule formerly prevailed in Eng- whether such a confession is, or is not land; but it is now abrogated there. admissible as evidence. However this

In respect to oral or unwritten evidence, may be (upon which it is unnecessary for there are some other rules, which it may us to express any opinion), it is certain, not be without use to state. And, 1. first, that any facts ascertained in consequence as to almissions. These, when made by of any confession are, in all cases, evithe party himself, or by his agent in the dence; as if a party confess, that he has particular transaction, are evidence against stolen goods, and tells where they are hidhim, though not for him. If there are den, and they are found, his statement, that several persons having a joint interest, an they were there, would be evidence against adınission of one of them in respect to the him, coupled with the fact of finding joint interest is evidence against all. So them.—And if a prisoner has been admitan admission of one partner, as to partner- ted as a witness for the government, and ship transactions, is evidence against all has confessed, and afterwards, upon the the partners. But in cases of crimes and trial of his accomplices, he has refused to torts (q. v.), the rule is more limited. give evidence, it has been decided, that, There, the admission of one defendant under such circumstances, lie may be condoes not affect the others, unless it be a victed upon his own confession.-3. Thirdpart of the res gestæ; or there be proof ly, as to the number of witnesses. Genof a common conspiracy or design, and erally speaking, by the common law, the the declarations of the party respect that testimony of a single witness, if believed, design, and are a part of it, or are made in is sufficient to establish any fact. There the course of executing it. But the ad- are, however, certain exceptions : First. missions or declarations of an agent are On an indictment for perjury, the evidence not evidence against the principal, unless of one witness is not sufficient to convict, they are made in a case within the scope for that would be only oath against oath. of his employment, or are a part of the There must be either two witnesses, or res gesta. His admissions at another time, strong independent evidence by circumor in another employment, are not so. stances, to corroborate the testimony of What he states while he is doing an act, one. Secondly, In cases of treason, by as agent, is evidence; what he states his- statute, in England, there must be two torically, afterwards, as to the acts and pro- witnesses to the same overt act of treason, ceedings under bis agency, is not, because or one witness to one, and another witness better proof may be obtained, for be may to another overt act of the same treason. be called to appear personally as 1 By the constitution of the U. States, no

There is a listinction in respect to person can be convicted of treason unless the effect of adm :sions. In some cases, on the testimony of two witnesses to the they are conclusive; in some, not. They same overt act, or on confession in open are often conclusive, when the party has court. In England, any confession would thereby induced another to act,or give cred- be sufficient, even when made out of it. In many other cases they may be contra- court, if proved by two witnesses. But iu dicted, where they do not operate as a fraud regard to collateral facts, a single witness is

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sufficient, even in cases of treason. Third- of such sentences in changing the proply, in courts of equity, the answer of the de- erty. So sentences of ecclesiastical courts fendant (being under oath), as to facts which in cases of which they have exclusive it positively and clearly denies, will prevail, jurisdiction. c. Judgments in cases of unless disproved by two witnesses or one general rights, as of a right of common, a witness and corroborative circumstances. public right of way, a custoni, a pedigree, A single witness, without such circumstan- &c., are admissible as evidence of such ces, is insufficient. In suits at law, the rule right, custom,&c., in suit between third peris otherwise ; and a single witness here suf- sons.—3. There are other judicial proceedfices in ordinary cases. The practice in ings, which are not strictly matters of reccourts of ecclesiastical jurisdiction is, in this ord, as decrees in chancery, and judgments respect, like that of the courts of equity. in inferior courts, to which, however, the

III. In respect to written evidence. same general principles apply, as matters This is divisible into various sorts :-1. of evidence, as to judgments of record. Statutes or acts of the legislature. These, 4. Depositions alsó, awards, and examinaif of a public nature, are evidence without tions by magistrates, are often evidence in any particular proof, for the judges are cases between the same parties. There bound to take notice of them as the law of are also cases, in which public writings the land. They are deemed records, and not judicial, such as journals of parliaof such a high nature, that they cannot be ment, public gazettes, rate or tax books, contradicted; for it is a general rule, that ship's registers, rolls of manor courts, cora record is conclusive proof, that the poration books, and books of public enjudgment or decision was made as is tries, &c. &c., are evidence. But to go at therein stated. But judicial tribunals will large into the distinctions applicable to not take notice of private acts of the legis- them would occupy too much space. lature ; and therefore, unless made evi- V. In respect to private writings, the dence by some special law, they are ad- rules applied to oral testimony are genemissible in proof only by a properly rally applicable here. Such writings are evauthenticated copy. But when so proved, idence between parties and privies, but not they, as matters of record, cannot be con- between strangers, except under the limitatradicted. 2. Judgments. Those of the tions already stated. There are some few superior courts of law are matters of rec- cases, in which the written statements of ord, and are also conclusive. Generally the party himself may be given in evidence, speaking, verdicts and judgments are evi- in his own favor, such as, for instance, his dence in cases between the parties to the account books, to verify charges made by suit and privies ; but they are not evi- him in respect to debts and charges, which dence in cases between strangers. When are properly matters of account, such as the judgment is directly upon the point, it debits and charges for goods sold, for is a bar between the same parties, and labor and services, and for materials furtheir privies, and may be pleaded as an nished. But the most common question, estoppel

. And in cases, where it need that arises in respect to written instrunot be so pleaded, it is, as evidence, con- ments relates to the mode of proving them clusive between the same parties and their to be genuine, or what they purport to be. privies. But it is not evidence of any When the original instrument is produced, matter, which came collaterally in ques- if it is objected to, and there is a witness, tion in the suit, nor of any matter inci- who subscribed it, he must be called to dentally cognizable, nor of any matter of prove the due execution of it by the inference from the judgment. There are party, whom it purports to bind. If the some exceptions to the general rule. witness be dead, or out of the country,

the The judgment in a suit between strangers handwriting of the witness must be prov; is sometimes admissible, as the record of a ed by some person acquainted with it, and judgment against a principal, who has then it will be presumed, that the witbeen convicted of a felony, may be given ness saw the due execution of it; and it is in evidence against an accessory. b. Judg- evidence witbout further proof. If there inents of courts of a peculiar and exclu- is no witness who subscribed it, the handcive jurisdiction are sometimes conclu- writing of the party who executed it may șive upon all persons. Thus judgments be proved by some person who is acin rem, in cases of seizures by the ex- quainted with it. But it is not sufficient chequer and other courts having exclusive to prove it by comparison of the handjurisiliction, are conclusive. So sentences writing with the known handwriting of of courts of admiralty in matters of prize, the party, though such evidence may be and in rem, at least as to the direct effect admitted in some cases as corroborative



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evidence. And it has been held, that in dence of what the parties intend, and of case of deeds, even the admission of the all which they intend. There are, howparty, that it is his deed, or that he exe- ever, some exceptions to the rule, founded cuted it, is not, at least where there is a on general convenience, which 'illustrate subscribing witness, proof of the due ex- rather than weaken its original propriety. ecution of it. If the instrument is lost, Parole evidence may be admitted to show upon proof of the loss (and the party to fraud or illegality in au instrument. So whom it belongs may be sworn to prove to show, that a deed, though dated on one the loss), the contents of it may be estab- day, was actually delivered on another; ished by a copy or other proper proof: for this does not vary its legal effect, but After an instrument has been executed only shows, when it began to operate. hirty years, and any possession has fol. So a custom may be shown, bearing upon sowed, or right been exercised in conformi- the subject matter of a contract and crety to it, it is admissible without any proof ating an obligation, though not provided by witnesses.-In respect to written evi- for in it, because contracts are presumed Lence, a question often occurs, how far to be made with a tacit reference to the parole (oral) evider ce is admissible to con- known customs of the place, and to introl or affect it. There are two sorts of clude the customary obligations and rights, ambiguities affecting written instruments. if there is nothing in the contract, which One is called latent ambiguity, and the controls the operation of the custom. So other patent ambiguity. The latter is such the usages of trade are, for a like reason, As appears upon the face of the instru- admissible, not to supersede, but, in effect, ment itself, from the doubtful nature of the to expound the real intention of the parcerms used. The former is where the ties. So, in certain cases, courts of equity cerms of the instrument are of themselves will allow parole evidence to establish a certain and free from doubt; but the am- mistake in a written instrument; but this biguity arises from some extrinsic matter they do only upon the clearest proofs in an or fact, collateral to the instrument. As, adverse case, where the mistake operates for instance, if A grant his manor in B to in fact as a fraud upon the party. So in C; and he has two manors in B, the relation to ancient instruments, such as whole difficulty arises, not from the in- charters, where there is some ambiguity strument itself, but from the extrinsic fact in the words, a long course of practice that he has two manors; for if he had but under them is considered as good proof one, that would surely pass.- If A devise of the true original exposition of them; an estate to his nephew B, and he has no and parole evidence for this purpose is adbuch nephew, but he has a nephew C, missible; for though the words are now there is the same latent ambiguity. In uncertain, they may have been certain in each of these cases, and indeed in all cases the age when they were used; and the of latent ambiguity, parole evidence is ad- parties, by their long acquiescence, are missible to show what or who was in- presumed to have put the proper constructended; for as the difficulty arises from tion on them. In all such cases it is the parole evidence, that may also be resorted object of judicial tribunals, as far as they io in order to remove it. But in cases of may, to uphold rather than defeat instrupatent ambiguity, it is otherwise. Parole ments.—There are, also, certain cases, in evidence cannot be admitted to supply a which express statute provisions exist, meaning which the words do not, of them- prohibiting any but written proofs of cerselves, import, or to give certainty, where tain contracts. In our law, the principal the words are uncertain. Indeed, the statute on this subject is commonly called general rule in our law is, that no parole the statute of frauds, from its object being to evidence is admissible to vary, explain or suppress frauds. Among the contracts emcontrol written instruments, to add new braced in this statute are contracts for the terms to them, or to limit or restrain the sale of lands or interests in lands; contracts import of the words used in them. The for the sale of goods above a certain value ground of this rule is the general insecu- as in England above £10; contracts to berity, which would arise from allowing the come answerable for the debt, default or deliberate acts of parties in writing to be miscarriage of another person ; contracts controlled by evidence so variable, and to bind executors and administrators to subject to so much doubt, as that is, which answer damages out of their own estate; depends upon the recollection of wit- and contracts, which are not to be per

Written instruments are pre- formed within the space of a year after sumed to be prepared with caution and they are made. Probably, in most counJeliberation, and to contain the best evi- tries, the civil policy has pointed out some


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