EVIDENCE. 



Hale, that no one should be convicted of 

 stealing goods of a person actually un- 

 known, unless there is proof of a felony 

 actually committed ; and none tried for 

 murder,untilthe murdtredbody be found. 



Written evidence has been divided into 

 tw classes : the one, that which is pub- 

 lic, the other private; and this first has 

 been subdivided into matters of record, 

 and others of an inferior nature. The 

 memorials of the legislature, such as acts 

 of parliament, and other proceedings of 

 the two houses, where acting in a legisla- 

 tive character, and judgment of the 

 King's superior courts of justice, are de- 

 nominated records, and are so respected 

 by the law, that no evidence whatsoever 

 can be received in contradiction of them; 

 but these are not permitted to be remov- 

 ed from place to place, to serve a private 

 purpose, and are therefore proved by co- 

 pies of them, which, in the absence of the 

 original, is the next best evidence. 



A bill in Chancery has been admitted as 

 slight evidence against the complainant ; 

 and an answer is evidence against the 

 defendant in equity himself, though not 

 against others, and the whole may be 

 read by the adverse party. Depositions in 

 Chancery may be evidence at law, but 

 not against others, and regularly not if 

 the witness be alive, except when taken 

 in perpetuam rei memoriam^ Sec. Matter in 

 law ought not to be given in evidence 

 upon a trial, but only of fact. 



Of persons competent to give evidence. 

 The King cannot be a witness under his 

 sign manual, and a peer must be sworn 

 to give evidence. A judge, or juror, may 

 give evidence, the one going off' the 

 bench, and the other stating his evidence 

 in open court. Members of corporations 

 cannot be heard in a cause for the corpo- 

 ration. In actions against churchwar- 

 dens, &c. for money mispent, in indict- 

 ments for repair of roads, and penal ac- 

 tions for the benefit of the parish, parish- 

 ioners may be witnesses. Kinsmen are 

 not to be objected to Husband and wife 

 are not received as witnesses for or 

 against each other, and the bail cannot be 

 a witness for hisprincipai, on account of his 

 direct interest in the event. One that has 

 any benefit under a will, or deed, must re- 

 lease it, before he can psove it as a wit- 

 ness ; and by stat. 25 Geo. If. c. 6., any 

 devise to a person who is witness to a 

 will, or codicil, is void, and he shall be 

 received as a witness. A bare trustee, it 

 is said, may prove a deed made to him- 

 self. Inactions for penalties on usury, 

 the borrower, after he has paid the mo- 



ney, may be a witness to prove it, 

 and in actions agaii:,si hie iv.iutueu, &c. 

 the party is received as a wiiness in his 

 own cause. Persons not ot sound memo- 

 ry, attainted of pr-uium re or conspiracy, ~ 

 convicted of felony, perjury, or other in- 

 famous crimes, are incompetent to be re- 

 ceived as witnesses; but these are re- 

 stored to competency by the King's par- 

 don, and the witness snail not be asked 

 any question to accuse himself, but it 

 must be proved by producing the convic- 

 tion ; but upon conviction of perjury, un- 

 der stat. 5 Eliz. c. 9, nothing but a rever- 

 sal of judgment can restore a man to com- 

 petency. 



Wills of land must be attested and sub- 

 scribed in the presence of the testator by 

 three witnesses. In general, the courts are 

 inclined to favour the receiving of evi- 

 dence, and to consider objections as to in- 

 terest to go more to the credibility of the 

 witness than to his competency. 



A conviction of treason, of felony, and 

 every species of infamous crime, as per- 

 jury, conspiracy, barratry, &c. prevent a 

 man, when convicted of them, from being 

 examined in a court of justice. When a 

 man is convicted of any of the offences 

 before mentioned, and judgment entered 

 up, he is for ever after incompetent to 

 give evidence, unless the stigma be re- 

 moved, which, in case of a conviction of 

 perjury, on the stat. of 5 Eliz. c. 9, can 

 never be by any means short of a reversal 

 of the judgment, for the statute has in 

 this case made his incompetency part of 

 his punishment ; but if a man be convict- 

 ed of perjury, or any other offence at 

 the common law, and the King pardons 

 him in particular, or grants a general 

 pardon to all such convicts, this restores 

 him to his credit, and the judgment no 

 longer forms an objection to his testimo- 

 ny ; but an actual pardon must be 

 shewn under the great seal, the warrant 

 for it under the King's sign manual not 

 being sufficient to found this objection 

 to the testimony of a witness, the party, 

 who intends to make it, should be pre- 

 pared with a copy of the judgment re- 

 gularly entered upon the verdict of con- 

 viction, for until such judgment be enter- 

 ed, the witness is not deprived of his legal 



On the question, how far persons who 

 have been defrauded of securities, or in- 

 jured by a perjury or other crime, can 

 be witness in prosecuting for those of- 

 fences, the event of which might possibly 

 exonerate them from the obligation they 

 are charged to have entered into, or re- 



