EVIDENCE. 
661 
reserved upon a lease becomes due, the lessee 
is not liable to pay any rent. Likewise, if on 
an exchange ot lands, either of the parties is 
evicted of the land given in exchange, the 
party evicted may iu that case re-entei his 
own lands. And a widow being evicted ot 
her thirds, shall be endowed in the other 
lauds of the heir. 
EVIDENCE, is the testimony adduced 
before a court or magistrate ot compel at 
jurisdiction, by which such couit oi magis- 
trate are enabled to ascertain any fact which 
may be litigated between the parties. 
This may be ot two kinds, viz. written or 
verbal : the former by deeds, bonds, or othei 
written documents ; the latter by witnesses 
examined viva voce. 
Evidence may be further divided into ab- 
solute and presumptive ; the former is direct, 
in positive or absolute affirmance or denial 
of any particular fact ; the latter collateral, 
and from the conduct of the parties, affords 
an inference that such a particular fact did 
or did not occur. 
The party making an affirmative alle- 
gation which is denied by his adveisaiy, is 
in general recjuired to prove it ■. unless indeed 
a man is charged with not doing an act, which 
by law he is required to do ; tor here a dif- 
ferent rule must necessarily prevail. And the 
rule is, that the evidence must be applied to 
the particular fact in dispute ; and therefore 
no evidence not relating to the issue, or in 
some manner connected with it, can be re- 
ceived ; nor can the character of either part y, 
unless put in issue by the very proceeding 
itself, be called in question ; for the cause is 
to be decided on its own circumstances, and 
not to be prejudiced by any matter foreign 
It is an established principle, that the best 
evidence the nature of the case will admit 
shall be produced ; for if it appears, that 
better evidence might have been _ brought 
forward, the very circumstance of its being 
withheld, furnishes a suspicion that it would 
have prejudiced the party in whose power it 
is, had he produced jt. Thus if a written 
contract is in the custody of the party, no 
verbal testimony can be received ot its con- 
tents. 
The law never gives credit to the bare as- 
sertion of any one, however high his rank or 
pure his morals; but requites (except in 
particular cases with respect to quakers) the 
sanction of an oath, and the personal attend- 
ance of the party in court that he may be ex- 
amined and cross-examined by the different 
parties; and therefore in cases depending on 
parole or verbal evidence, the testimony of 
persons who are themselves conversant with 
the facts they relate, must be produced; 
the law paying no regard, except under 
special circumstances, to any hearsay evi- 
dence. Thus in some cases, the memo- 
randum in writing made at the time, by a 
person since deceased, in the ordinary way 
of his business, and which is corroborated by 
other circumstances, will be admitted as 
evidence of the fact. 
What a party himself has been heard to 
sav, does not fall within the objection. As 
to' hearsay evidence, any thing therefore, 
which the party admits, or which, another 
asserts in his presence and he does not con- 
tradict, is received as evidence against him ; 
but what is said by his wife, or any other 
7 
member of his family, in his absence, will be 
rejected. 
Rut a distinction must be made between 
admission, and an offer of compromise, after 
a dispute lias arisen. An offer to pay a sum 
of money in order to get rid of an action, 
is not received in evidence of a debt, be- 
cause such offers are made to stop litigation, 
without regard to the question whether any 
thing or what is due. 
Admissions of particular articles before ar- 
bitration are also good evidence, for they are 
not made with a view to compromise, but 
the parties are contesting their rights as 
much as they could do on a trial. 
In cases where positive and direct evi- 
dence is not to be looked for, the proof of 
circumstance and fact consistent with the 
claim of one party, and inconsistent with that 
of the other, is deemed sufficient to enable 
the jury, under the direction of the court of 
justice, to presume the particular fact, which 
is the subject of controversy ; for the mind 
comparing the circumstances of the particu- 
lar case, judges therefrom as to the proba- 
bility of the story, and for want of better 
evidence, draws a conclusion from that before 
it. 
Written evidence has been divided into 
two classes: the one that which is public, 
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 legis- 
lative character, and judgment of the king’s 
superior courts of justice, are denominated 
records ; and are so respected by' the law, 
that no evidence whatever can be received 
in contradiction of them ; but these are not 
permitted to be removed from place to place, 
to serve a private purpose ; and are therefore 
proved by copies of them, which in the ab- 
sence of the original, are the next best evi- 
dence. 
Of persons incompetent to give evidence. 
— All persons who are examined as witnesses, 
must be fully possessed of their understand- 
ing ’ that is, such an understanding as em 
abies them to retain in memory the events 
of which they have been witnesses, and give 
them a knowledge of right and wrong. 
A conviction of treason or telony, and 
every species thereof, such as perjury, con- 
spiracy, barratry, &c. prevents 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 is entered up, he is tor ever after 
incompetent to give evidence, unless the 
stigma is removed, which in case of a con- 
viction of perjury, on the stat. of 5 Eliz. c. 9. 
can never be by any means short of a re- 
versal of the judgment ; for the statu te has in 
this case, made his incompetency part of his 
punishment : but if a man is convicted of per- 
jury, or any other offence, at the common 
"law* and the king pardons him in particular, 
or grants a general pardon to. all such con- 
victs, this restores him to his credit, and the 
judgment no longer forms an objection to his 
testimony ; but an actual pardon must be 
shewn under the great seal, the warrant for it 
under the king’s sign manual not being suf- 
ficient. To found this objection to the testi- 
mony of a witness, the party who intends to 
make it, should be prepared with a copy of 
the judgment regularly entered upon the 
verdict of conviction ; for until such jiulgm -nt 
is entered, the witness is not deprived o. his 
legal privileges. 
Persons may also be incompetent wit- 
nesses, by reason of their interest in the- 
cause. The rule which has the most exten- 
sive operation in the exclusion of witnesses, 
and which lias been found most difficult in 
its application, is that which prevents per- 
sons interested in the event ot a suit, unless 
in a few excepted cases of evident necessity,, 
from being witnesses in it. Of late years the 
courts have endeavoured, as tar as possible 
consistent with authorities, to let the ob- 
jection go to the credit rather than the com- 
petency of a witness; and the general rule' 
now established is, that no objection can be 
made to a witness on this ground, unless he 
is distinctly interested, that is, unless he may 
be immediately benefited or injured by the 
event of the suit, or unless the verdict to be 
obtained by his evidence, or given against it, 
will be evidence for or against him in another 
action, in which he may afterwards be a 
party ; any smaller degree ol interest, as the 
possibility that he may be liable to an action 
in a certain event, or that, standing in a 
similar situation with the party by whom he 
is called, the decision in that cause, may by 
possibility influence the minds of a jury in his 
own, or. the like, though it furnishes a strong 
argument against his credibility, does not 
destroy his competency. 
On the question, how far persons who have 
been defrauded of securities, or injured by a 
perjury or other crime, can be witnesses in- 
prosecuting for those offences, the event ot 
which might possibly exonerate them from 
an obligation they are charged to have 
entered into, or restore to them money 
which they have been obliged to pay ; the 
general principle now established is this: the 
question in a criminal prosecution or per- 
sonal act, being the same with that in a civil 
cause in which the witnesses are interested, 
goes generally to the credit, unless the judg- 
ment in the prosecution where they are wit- 
nesses, can be given in evidence in this cause 
wherein they are interested. But. though 
this is the general rule, an exception to it 
seems to be established in the case ot forgery ; 
for many cases have been decided, that a 
person whose hand-writing has been forged 
to an instrument, whereby if good he would 
be charged with a sum of money, or one who 
has paid money in consequence of such for- 
gery, cannot be a witness on the indictment. 
In cases where the party injured cannot by 
possibility derive any benefit from the ver- 
dict in the prosecution, as in indictments for 
assault,, and the like personal injury, his com- 
petence has never been doubted. It is a ge- 
neral rule that a party cannot be examined, 
as a witness, for he is in the highest degree 
interested in. the event of it ; but where a 
man is not in point of fact interested, but 
only a nominal party; as where members of 
a charitable institution are defendants in then: 
corporate character, there is no objection to 
an individual member being examined as a 
witness for the corporation ; for in this case 
lie is giving evidence for the public body 
only, and not for himself as an individual. 
Peake’s N. E. Cas-153. Bui. N. P. 293. 
