EVIDENCE. 
is many times equal to full proof; for there thofe circum¬ 
ftances appear, which neceffarily attend the faft. As if 
a landlord fues for rent due at Michaelmas i 754 > and the 
tenant cannot prove the payment, but produces an ac¬ 
quittance for rent due at a fubfequent time, in full of all 
demands, this is a violent prefumption of his havingpaid 
the former rent, and is equivalent to full proof ; for 
though the aftual payment is not proved, yet the acquit¬ 
tance in full of all demands is proved, which could not 
be without fuch payment ; and it therefore induces fo 
forcible a prefumption, that no proof fliall be admitted 
to the contrary. Gilo. Evid. 161. Probable prefumption 
ariling from fuch circumftances as ufually attend the faft, 
hath alio its due weight: as if, in a fuit for rent due in 
1754, the tenant proves the payment of the rent due in 
1755, this will prevail to exonerate the tenant (Co. Litt. 
373); unlefs it be clearly Ihewn that the rent of 1754 
was retained for fome fpecial reafon, or that there was 
fome fraud or miftake; for otherwife it will be prefumed 
to have been paid before that in 1755, as it is molt ufual 
to receive firft the rents of longed Handing. Light or 
rafh prefumptions have no weight or validity at all. 
The oath adminiltered to the witnefs, is not only that 
what he depofes fliall be true, but that he fhall alfo de- 
pofe the whole truth ; fo that he is not to conceal any 
part of what he-know's, whether interrogated particu¬ 
larly to that point or not. And all this evidence is to be 
given in open court, in the prelence of the parties, their 
attorney, the counfel, and all by-fLmders, and before 
the judge and jury ; each party having liberty to except 
to its competency, which exceptions are publicly dated, 
and by the judge are openly and publicly allowed or dif- 
allowed, in the face of the country. And if either in his 
directions or decilions he mis-ftates the law by ignorance, 
inadvertence, or delign, the counfel on either fide may 
require him publicly to feal a bill of exceptions, dating 
the point wherein he is fuppofed to err. Or if the legal 
effeft of a record or other evidence is doubted, this may 
be tried on a demurrer to evidence. 3 Comm. 367. 
The doctrine of evidence in criminal cafes is, in mod 
refpefts, the fame as that upon civil aftions. There are 
however a few leading points, wherein by feveral fta- 
tutes and refolutions a difference is made between civil 
and criminal evidence. In all cafes of high-treafon, pe- 
tit-treafon, and mifprilion of treafon,.by 1 Edw.VI. c. 
12, and 5 and 6 Edw. VI. c. n, two lawful witnedes 
are required to convift a prifoner ; unlefs he fliall wil¬ 
lingly and without violence confefs the fame. By 1 & 2 
Phil, and Mary, c. to, a farther exception is made as to 
treafons in counterfeiting the king’s feals or fignatures, 
and treafons concerning coin current within this realm ; 
and more particularly the offences of importing counter¬ 
feit foreign'money current in this kingdom, and impair¬ 
ing, counterfeiting, or forging any current coin. The 
da titles S & 9 Will, 111 . c. 25 ; 15 & 16 Geo. 11 . c. 28, 
in their fubfequent extenfions of this fpecies of treafon 
do alfo provide, that the offenders may be indicted, ar¬ 
raigned, tried, convidted, and attainted, by the like evi¬ 
dence, and in fuch manner and form as may be had and 
ufed againd offenders for counterfeiting the king’s money. 
But by 7 Will. III. c. 3, in profecutions for thefe trea¬ 
fons to which that adt extends, the fame rule (of requir¬ 
ing two witnedes) is again enforced ; w ith this addition, 
that the confelfion of the prifoner, which fliall counter¬ 
vail the neceffity of fuch proof, mud be in open court. 
In the condrudtion of which adt it hath been holden, that 
a confefiion of the prifoner, taken out of court, before a 
magidrate or perfon having competent authority to take 
it, and proved by two witnedes, is fufticient to convidt 
him of treafon. Forfter 240, 4. But hudy tingarded con 
fefiions, made to perfons having no fuch authority, ought 
not to be admitted as evidence under this ftatute. And 
indeed, even in cafes of felony at the common-law, they 
are the weak eft and mod fufpicious of all tedimony ; ever 
liable to be obtained by artifice, falfe hopes, promiles, of 
1 
59 
favour, or menaces; feldom remembered accurately, or 
reported with due precifion ; and incapable in their na¬ 
ture of being difproved by other negative evidence. By 
the fame datute, it is declared that both witnedes mud 
be to the fame overt-aft of treafon ; or one to one overt- 
aft, and the other to another overt-aft of the fame fpe¬ 
cies of treafon, and not of dillinft heads or kinds ; and no 
evidence fliall be admitted to prove any overt-aft not ex- 
prefsly laid in the indiftment. And, therefore, in fir 
John Fenwick’s cafe, in king William’s time, where 
there was but one witnefs, an aft of parliament, (8 Will. 
III. c. 4,) was made on purpofe to attaint him of trea¬ 
fon, and he was executed. 5 State Trials 40. But in al- 
mofl every other accufation, one politive witnefs is fuffi- 
cient ; except in cafes of indiftments for perjury, w'here 
one witnefs is not fufficient, becaufe then there is only 
one oath againft another. 10 Mod. 194. 
By 21 Jaci I. c. 27, a mother of a baflard child, con¬ 
cealing its death, mud prove by one witnefs that the 
child was born dead ; otherwife fuch concealment fliall 
be evidence of her having murdered it. 
All prefumptive evidence of felony Ihould be admitted 
cautioufly; for the law holds, that it is better that tea 
guilty perfons fhould efcape, than that one innocent fuffer. 
And fir Matthew Hale in particular lays down two rules 
mod prudent and necedary to be obferved. 1. Never to 
convift a man for dealing the goods of 11 perfon unknown, 
merely becaufe he will give no account how he came by 
them, unlefs an aftual felony be proved of fuch goods; 
and, 2. Never to convift any perfon of murder or man- 
fiaughter, till at lead the body be found dead ; on ac¬ 
count of two indances lie mentions, where perfons were 
executed for the murder of others, who were then alive, 
but milling. 2 Hal. P. C. 200. 
By 14 Geo. II. c. 20, where any perfon has purchafed 
or fliall purchafe for a valuable conlideration, any eflate, 
whereof a 'recovery was necelfarv to complete the title, 
fuch perfon, and all claiming under him, having been in 
poifelfion from the time of fuch purchafe, fliall and may 
after the end of twenty years from the time of fuch pur- 
chafe, produce in evidence the deed, making a tenant to 
tire prrecipe, and declaring the ufes; and the deed fo pro¬ 
duced (the execution thereof being duly proved) fliall be 
deemed fufficient evidence, that fuch recovery was duly 
fuffered, in cafe no record can be found of fuch recove¬ 
ry, or the fame fhould appear not regularly entered. Pro¬ 
vided the perfon making fuch deed had a fufficient eflate 
and power to make a tenant to the pracipe, and to fufler 
fuch common recovery. 
A deed may be made good evidence, though tire feal 
is broken off; and where a deed is burnt, or loll, the 
judges may allow it to be proved by witneffes, that there 
was fuch a deed, and this be given in evidence. 1 Lev. 
25. -But the court will not allow the jury, on a trial at 
bar, to carry deeds, writings, or books, with them out 
of court, as evidence to confider of, but fuch as have 
been proved ; though by the alfent of parties, or by af- 
fent of the court without the parties, they may be deli¬ 
vered to tire jurors. Cro. Eliz. 421. All deeds or writ¬ 
ings under feal, and given in evidence, they may have; 
and nothing which was not given in evidence ; for the 
court gives their direction to the jury wholly upon the 
evidence given in court. 1 Li/. 313. It hath been held, that 
the counterpart of a deed, without other circumftances, 
is not fufficient evidence; unlefs in cafe of a fine, when 
a counterpart is good evidence of itfelf. 1 Salk- 287. 
The probate of a will, when it concerns perfonal eflate 
only, may be given in evidence ; but where title of lands 
is claimed under a will, the original will mud be fliewn, 
not the probate ; though if the will be proved in the 
chancery, copies of the proceedings there will be evi¬ 
dence. r Salk. 2$6; and Raym. 335. In certain cafes the 
ledger-book of the ecclefiadical court in which the will 
is entered, is fufficient evidence, being a roll or record, 
of the court. Bull. N. P. 243, 6 . 
