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EVIDENCE. 
If depofitiotrs are taken out of the realm, lie who makes 
them is fuppofed there (fill, and they fhall be read as evi¬ 
dence ; but if it be proved he is in England, they cannot 
be read, but he muff come in perfon. i Lil. 555. Things 
done beyond fea may be given in evidence to a jury ; and 
the teffimony of a public notary of things done in a fo¬ 
reign country will be good evidence. 6 Rep. 47. 
By 1 & 2 Phil, and Mary, c. 13 ; 2 & 3 Phil, and Ma¬ 
ry, c. 10, juflices of peace fhall examine perfons brought 
before them for felony, and thofe who brought them, 
and certify fuch examination to the next gaol delivery ; 
but the examination of the prifoner fital 1 be without oath, 
and the others upon oath ; and thefe e...tminations fhall 
be read againft an offender upon an indictment, if the 
witneffies be dead. Bull. N. P. 242. 
In a court of common-law, a decree in chancery is no 
•evidence. Letters may be produced as evidence againft 
a man in treafon, &c. Although a witnefs l'wear to 
the hand and contents of a letter, if he never faw the 
party write, he fit al l not be allowed as evidence. Skin. 
673. In general cafes the witnefs fliould hfive gained his 
knowledge from feeing the party write ; but under forne 
circumftances, that is not neceffiary ; as where the hand¬ 
writing to be proved is of a perfon refiding abroad, one 
who has frequently received letters from him in a courfe 
of correfpondence, would be admitted to prove it though 
he had never feen him write. So where the antiquity of 
the writing makes it impoflible for any living witnefs to 
fwear he ever faw the party write. On an indictment for 
writing a treafonable libel, proof of the hand-writing is 
fufficient, Without proof of the actual writing. Bull. 
N. P. 236. 
The king cannot be a witnefs under his fign manual, 
&c. though it lias been allowed he may in relation to a 
promife made in behalf of another. Hob. 213. A peer 
produced as an evidence ought to be fworn. 3 Keb. 631. 
It is no exception to an evidence, that he is a judge or a 
juror, to try the perfon ; for a judge may give evidence 
going off from the bench. 2 Hawk. P. C. c. 46. And a 
juror may bean evidence as to his particular knowledge ; 
but then it mult be on examination in open court, not 
before his brother jurors. 1 Bill. 552. Members of cor¬ 
porations fhall be admitted or refufed to give evidence 
in aftions brought by corporations, as their interelt is 
fmall or great; whereby it may be judged whether they 
will be partial or not. 2 Lev. 121. But they will not 
generally be admitted; though inhabitants not'free of 
the corporation may be good witnelfes for the corporation, 
as their intereft is not concerned. 
In aCtions againft church-wardens and overfeers of the 
poor for recovery of money mif-fpent on the parilh ac¬ 
count, the evidence of the pariftiioners, not receiving 
alms, ftiall be allowed. 3 & 4 Will, and Mary, c. 11. 
In informations or indictments for not repairing highways 
and bridges, the evidence of the inhabitants of the town, 
corporation, See. where fuch highways, lie, (hall be ad¬ 
mitted. 1 Anne, c. 18. 
Kinfmen, though never fo near, tenants, fervants, 
matters, attornies for their clients, and all others that are 
not infamous, and which want not underftanding, or are 
not parties in intereft, may give evidence in a caufe, 
though the credit of fervants is left to the jury. 2 Rol. 
Abr, 685. A counfellor, attorney, or lolicitor, is- not 
It; be examined as an evidence againft their clients, be- 
caufe they are obliged to keep their fecrets ; but they 
may be examined as to any tiling of their own knowledge 
before retained, not as counfel or attorney. 1 Vent. 97. 
The bail cannot be an evidence for his principal. If 
the plaintiff makes one a defendant in the fait, on pur- 
pofe to impeach his teftimony, under a pretence of his 
being a party in intereft, he may neverthelefs be exa¬ 
mined de bene ejje ; and if the plaintiff prove no caufe of 
action againft him, his evidence (hall be allowed in the 
caufe. 2 Li/l. Abr. 701. But in civil fuits, and indict¬ 
ments for trefpaftes, See, the plaintiff or profecutor 
ufually goes through his evidence, and thofe defendants 
who are not affeCted are fometimes, by direction of the 
judge, acquitted, and then give evidence for the other 
defendant or defendants; and fometimes they have been 
examined without the form of an acquittal. 
One that hath a legacy given him by \\ ill, is not a good 
witnefs to prove the will ; but if he releafe his legacy, 
he may be a good evidence. Skin. 704. It is the fame of 
a deed ; he that claims any benefit by it, may not be an 
evidence to prove that deed, in regard of his intereft; 
and a perfon any ways concerned in the fame title of land 
in queftion, will not be admitted as evidence. But it 
lias been held, that an heir apparent may be a witnefs 
concerning a title of land ; and yet a remainder-man, 
who hatha prefent intereft, cannot. 1 Salk. 385. To ob¬ 
viate all difficulties, it is enaCted, by 25 Geo. II. c. 6, 
that any devife to a perfon being witnefs to any will or 
codicil ftiall be void ; and fuch perfon (hall be admitted 
as a witnefs; and that any creditor attefting a will or co¬ 
dicil, by which his debt is charged upon land, fhall be 
admitted as a witnefs to the execution, notwitliftanding 
fuch charge ; the credit of every fuch witnefs being left 
to the confideration of the court and jury. 
In criminal cafes, as robbery on the highway, in ac¬ 
tion againft the hundred; in rapes of women, orwhere 
a woman is married by force, &c. a manor a woman may 
be an evidence in their own caufe. 1 Vent. 243. And in 
private enormous cheats, a perfon may give evidence in 
his own caufe, where nobody elfe can be a witnefs of 
the circumftances of the fa£l, but he that fufFers. 1 Salk. 
286. Upon an information on the ftatute againft ufury, 
he that borrows the money, after he hath paid it, may 
be an evidence, but not before. Raym. 191. 
An alien infidel may not be an evidence ; but a Jew 
may, and be fworn on the Old Teftament. 1 Injl. 6. A 
Quaker (hall not be permitted to give evidence in any 
criminal caufe, (unlefs he will take an oath ;) though on 
other occafions, his folemn affirmation ftiall be accepted 
inftead of an oath. 7 & 8 Will. III. c. 34. See the ar¬ 
ticle Quaker.— The oath of a Gentoo, fworn according 
to the circumftances of his religion, has been admitted 
in a civil matter. 1 Aik. 21. And by Willis C. J. an in¬ 
fidel, in general, is an admiftible witnefs, for the term 
does not imply that he is an atheift ; but wherever it ap¬ 
pears that a witnefs has no idea of a God or religion, he 
(hall not be permitted to give his teftimony. 1 Atk. 40, 
45. Perfons excommunicated cannot be witneffies, be- 
caufe, being excluded out of the church, they are fup- 
pofed not to be under the influence of any religion. But 
perfons outlawed may be witnelfes, becaafe they are' pu- 
nifhed in their properties, and not in the lofs of their re¬ 
putation, and the outlawry has no manner of influence on 
their credibility. Bull. N. P. 292, 3. 
An informer may be a witnefs, though he is to have 
part of the forfeiture, where no other witneffies can be 
had. Wood’s Injl.it. 598. Members of either houfe of par¬ 
liament may be witneffies on impeachments. State Trials, 
vol. ii. 632. Ideots, madmen, and children, are ex¬ 
cluded from giving evidence, for want of (kill and dif- 
cernment. 
A witnefs fhall not be examined where his evidence 
tends to clear or accufe himfelf of a crime. State Trials, 
vol. i. 557. Nor is lie bound to give any anfvver by 
which heconfelfes or accufes himfelf of any crime. And 
a witnefs (ball not be crofs-examined till he hath gone 
through the evidence on the fide whereon produced. The 
court in criminal cafes is to examine the witneffies, and 
not the prifoner or profecutors. Though in eafe of the 
court, counfel are admitted to examine the evidence. An 
evidence (hall not be permitted to read his evidence, but 
he may look on his notes to refrelli his memory. 
The onus probardi, or burthen of proving, lies on the 
plaintiff; and the prefuniption (hall (land, until the con¬ 
trary appear; though that which plainly appeareth need 
not be given in evidence. Co. Lit, 233. The defendant’s 
Counfel 
