customs, and charters, to physicians and other medical persons, counsel, attorneys, officers of the courts, and the like; all of whom, if impanelled, must show their special exemption. Clergymen are also usually excused, out of favour and respect to their function: but, if they are seised of lands and tenements, they are in strictness liable to be impanelled in respect of their lay-fees, unless they be in the service of the king or of some bishop: "in obsequio domini regis, vel alicujus episcopi.” (i)1

If by means of challenges, or other cause, a sufficient number of unexceptionable jurors doth not appear at the trial, either party may pray a tales. A tales is a supply of such men as are summoned upon the first panel, in order to make up the deficiency. For this purpose, a writ of decem tales, octo tales, and the like, was used to be issued to the sheriff at common law, and must be still so done at a trial at bar, if the jurors make default. But at the assizes or nisi prius, by virtue of the statute 35 Hen. VIII. c. 6, and other subsequent *statutes, the judge is empowered at the prayer of either party to award a tales de circumstantibus,(j) of persons present in court, to be joined to the other jurors to try the cause; who are liable, however, to the same challenges as the principal jurors. This is usually done, till the legal number of twelve be completed; in which patriarchal and apostolical number Sir Edward Coke(k) hath discovered abundance of mystery.(1)

[*365

When a sufficient number of persons impanelled, or tales-men, appear, they are then separately sworn, well and truly to try the issue between the parties, and a true verdict to give according to the evidence; and hence they are denominated the jury, jurata, and jurors, sc. juratores.

We may here again observe, and observing we cannot but admire, how scrupulously delicate, and how impartially just, the law of England approves itself, in the constitution and frame of a tribunal, thus excellently contrived for the test and investigation of truth; which appears most remarkably, 1. In the avoiding of frauds and secret management, by electing the twelve jurors out of the whole panel by lot. 2. In its caution against all partiality and bias, by quashing the whole panel or array, if the officer returning is suspected to be other than indifferent; and repelling particular jurors, if probable cause be shown of malice or favour to either party. The prodigious multitude of exceptions or challenges allowed to jurors, who are the judges of fact, amounts nearly to the same thing as was practised in the Roman republic, before she lost her liberty that the select judges should be appointed by the prætor with the mutual consent of the parties. *Or, as Tully (m) expresses it: "nemi[*366 nem voluerunt majores nostri, non modo de existimatione cujusquam, sed ne pecuniaria quidem de re minima, esse judicem: nisi qui inter adversarios convenisset." Indeed, these selecti judices bore in many respects a remarkable resemblance to our juries: for they were first returned by the prætor; de decuria senatoria conscribuntur: then their names were drawn by lot, till a certain number was completed; in urnam sortito mittuntur, ut de pluribus necessarius numerus confici posset: then the parties were allowed their challenges; post urnam permittitur accusatori, ac reo, ut ex illo numero rejiciant quos putaverint sibi, aut inimicos, aut ex aliqua re incommodos fore: next they struck what we call a tales; rejectione celebrata, in eorum locum qui rejecti fuerunt subsortiebatur prætor alios, quibus ille judicum legitimus numerus compleretur; lastly, the judges, like our jury, were sworn; his perfectis, jurabant in leges judices, ut obstricti religione judicarent.(n)

The jury are now ready to hear the merits; and, to fix their attention the closer to the facts which they are impanelled and sworn to try, the pleadings

(1)F. N. B. 166. Reg. Brev. 179.

(2) Append. No. II. 4.

(*) 1 Inst. 155.

() Pausanias relates that at the trial of Mars, for murder, In the court denominated Areopagus from that incident; he was acquitted by a jury composed of twelve pagan deities. And Dr. Hickes, who attributes the introduction of this number to the Normans, tells us that among the inhabitants of Norway, from whom the Normans as well as the Danes were descended, a great veneration was paid to the number

twelve: “nihil sanctius, nihil antiquius fuit; perinde ac si in ipso hoc numero secreta quædam esset religio." Dissert. Epistolar. 49. Spelm. Gloss. 329.

15 They are now excused, by 6 Geo. IV. c. 50.-CHITTY.

are opened to them by counsel on that side which holds the affirmative of the question in issue. For the issue is said to lie, and proof is always first required, upon that side which affirms the matter in question: in which our law agrees with the civil;(o) "ei incumbit probatio, qui dicit, non qui negat; cum per rerum naturam factum-négantis probatio nulla sit." The opening counsel briefly informs them what has been transacted in the court above; the parties, the nature of the action, the declaration, the plea, replication, and other proceedings, and, lastly, upon what point the issue is joined, which is there set down to be determined. Instead of which,(p) formerly the whole record and process of the pleadings was read to *them in English by the court, and the matter in *367] issue clearly explained to their capacities. The nature of the case, and the evidence intended to be produced, are next laid before them by counsel also on the same side: and when their evidence is gone through, the advocate on the other side opens the adverse case, and supports it by evidence; and then the party which began is heard by way of reply.

The nature of my present design will not permit me to enter into the numberless niceties and distinctions of what is, or is not, legal evidence to a jury.(q) I shall only therefore select a few of the general heads and leading maxims relative to this point, together with some observations on the manner of giving evidence.

And, first, evidence signifies that which demonstrates, makes clear, or ascer tains the truth of the very fact or point in issue, either on the one side or on the other; and no evidence ought to be admitted to any other point. Therefore upon an action of debt, when the defendant denies his bond by the plea of non est factum, and the issue is, whether it be the defendant's deed or no; he cannot give a release of this bond in evidence: for that does not destroy the bond, and therefore does not prove the issue which he has chosen to rely upon, viz., that the bond has no existence.

Again: evidence in the trial by jury is of two kinds, either that which is given in proof, or that which the jury may receive by their own private knowledge. The former, or proofs, (to which in common speech the name of evidence is usually confined,) are either written, or parol, that is, by word of mouth. Written proofs or evidence are,-1. Records, and 2. Antient deeds of thirty years' standing, which prove themselves; but, 3. Modern deeds, and 4. Other *writings, must be attested and verified by parol evidence of witnesses. *368] And the one general rule that runs through all the doctrine of trials is this, that the best evidence the nature of the case will admit of shall always be required, if possible to be had; but, if not possible, then the best evidence that can be had shall be allowed." For if it be found that there is any better (0) Ff. 22, 3, 2. Cod. 4, 19, 23.

(P) Fortesc. c. 20.

(4) This is admirably well performed in lord chief-baron Gilbert's excellent treatise of evidence,-a work which it is

impossible to abstract or abridge without losing some beauty and destroying the chain of the whole, and which hath lately been engrafted into a very useful work, The Introduction of the Law of Nisi Prius, 4to. 1767.

16 The same rule applies to wills thirty years old. 4 T. R. 709, note. This rule is laid down in books of evidence without sufficient explanation of its principle, or of the extent of its application. There seems to be danger in permitting a deed to be read merely because it bears date above thirty years before its production, and in requiring no evidence, where a forgery may be committed with the least probability of detection. ChiefBaron Gilbert lays down, that where possession has gone agreeably to the limitations of a deed bearing date thirty years ago, it may be read without any evidence of its execution, though the subscribing witnesses be still living. Law of Ev. 94. For such possession affords so strong a presumption in favour of the authenticity of the deed as to supersede the necessity of any other proof of the validity of its origin, or of its due execution. The court of King's Bench have determined that the mere production of a parish certificate dated above thirty years ago was sufficient to make it evidence, without giving any account of the custody from which it was extracted. 5 T. R. 259.— CHRISTIAN.

17 No rule of law is more frequently cited and more generally misconceived than this. It is certainly true when rightly understood; but it is very limited in its extent and application. It signifies nothing more than that, if the best legal evidence cannot possibly be produced, the next best legal evidence shall be admitted. Evidence may be divided into primary and secondary; and the secondary evidence is as accurately defined

evidence existing than is produced, the very not producing it is a presumption. that it would have detected some falsehood that at present is concealed. Thus, in order to prove a lease for years, nothing else shall be admitted but the very deed of lease itself, if in being; but if that be positively proved to be burned or destroyed, (not relying on any loose negative, as that it cannot be found, or the like,) then an attested copy may be produced; or parol evidence be given of its contents. So, no evidence of a discourse with another will be admitted, but the man himself must be produced; yet in some cases (as in proof of any general customs, or matters of common tradition or repute) the courts admit of hearsay evidence, or an account of what persons deceased have declared in their lifetime; but such evidence will not be received of any particular facts.18 So, too, books of account or shop-books are not allowed of

by the law as the primary. But in general the want of better evidence can never justify the admission of hearsay, interested witnesses, or the copies of copies, &c. Where there

are exceptions to general rules, these exceptions are as much recognised by the law as the general rule; and, where boundaries and limits are established by the law for every case that can possibly occur, it is immaterial what we call the rule and what the exception.-CHRISTIAN.

Some of the numerous cases which are found even in modern books may be cited for illustration and in confirmation of the text and note.

If the subscribing witness be living and within the jurisdiction of the court, he must be called to prove the execution; or if he cannot be found, and that fact be satisfactorily explained, proof of his handwriting will be sufficient evidence of the execution. Barnes vs. Trompowsky, 7 T. R. 266. And the witness of the execution is necessary; acknowledgment of the party who executed the deed cannot be received. Johnson vs. Mason, 1 Esp. 89. At least only as secondary evidence. Call, Bart vs. Dunning, 4 East, 53. And acknowledgment to a subscribing witness by an obligor of a bond that he has executed it is sufficient. Powell vs. Blackett, 9 Esp. 87; and see Grellier vs. Neale, Peake, 146. But a mere bystander may not be received to supply the absence of the subscribing witness, (McCraw vs. Gentry, 3 Camp. 232,) or only as secondary evidence. See the next If the apparent attesting witness deny that he saw the execution, secondary evidence is admissible; that is to say, the handwriting of the obligor, &c. may be proved. Ley vs. Ballard, 3 Esp. 173, n. And, as a general rule, it seems that wherever a subscribing witness appears to an instrument, note, &c., he must be called, or his absence explained. See Higgs vs. Dixon, 2 Stark. 180. Breton vs. Cope, Peake, 31.—CHITTY.

case.

It is a general rule that the mere recital of a fact-that is, the mere oral assertion cr written entry by an individual that a particular fact is true-cannot be received in evidence. But the objection does not apply to any public documents made under lawful authority, such as gazettes, proclamations, public surveys, records, and other memorials of a similar description, and whenever the declaration or entry is in itself a fact and is part of the res gesta. Stark. on Evid. p. 1, 46, 47. But it is to be carefully observed that neither the declarations nor any other acts of those who are mere strangers, or, as it is usually termed, any res inter alios acta, is admissible in evidence against any one, as affording a presumption against him in the way of admission, or otherwise. Ib. 51.—CHITTY. In cases of customs and prescriptive rights, hearsay or traditional evidence is not admitted until some instances of the custom or exercise of the right claimed are first proved. The declarations of parents respecting their marriage, and the legitimacy of their children, are admitted after their decease as evidence. And hearsay is also received respecting pedigrees and the death of relations abroad. Bull. N. P. 294. 2 Esp. 784. What has been said in conversation in the hearing of any party, if not contradicted by him, may be given in evidence; for, not being denied, it amounts to a species of confession. But it can only be received where it must be presumed to have been heard by the party; and therefore in one case the court stopped the witness from repeating a conversation which had passed in a room where the prisoner was, but at the time while she had fainted away. It has been the practice of the quarter-sessions to admit the declarations of paupers respecting their settlements, to be received as evidence after their death, or, if living, where they could not be produced. See 3 T. R. 707, where the judges of the King's Bench were divided upon the legality of this practice, and where the subject of hearsay evidence is much discussed. For many years, whilst lord Mansfield presided in the court of King's Bench, the court were unanimously of opinion that the declarations of a pauper respecting his settlement might after his death be proved and given in evidence. When lord Kenyon and another judge were introduced, the court were divided, and the former practice prevailed; but when the court were entirely changed, they determined that this hearsay evidence was not founded on any principles of law, and tha. the evidence at the quarter-sessions in the cases of settlement ought to be the same

themselves to be given in evidence for the owner; but a servant who made the entry may have recourse to them to refresh his memory; and if such servant (who was accustomed to make those entries) be dead, and his hand be proved, the book may be read in evidence ;(r) for as tradesmen are often under a necessity of giving credit without any note or writing, this is therefore, when accompanied with such other collateral proofs of fairness and regu larity,(s) the best evidence that can then be produced. However, this dangerous species of evidence is not carried so far in England as abroad;(t) where a man's own books of accounts, by a distortion of the civil law, (which seems to have meant the same thing as is practised with us,)(u) with the suppletory *369] oath of the merchant, amount at all times to full proof." But as this kind of evidence, even thus regulated, would be much too hard upon the buyer at any long distance of time, the statute 7 Jac. I. c. 12 (the penners of which seem to have imagined that the books themselves were evidence at common law) confines this species of proof to such transactions as have happened within one year before the action brought; unless between merchant

(*) Law of Nisi Prius, 266.

(*) Salk. 285.

quoque adminiculis adjurentur, ad probationem sola non sufficiunt. Cod. 4, 19, 5. Nam exemplo perniciosum est, ut ei scripturæ credatur, qua unusquisque sibi adnotatione () Instrumenta domestica, seu adnotatio, si non aliis propria debitorem constituit. Ibid. 7. 7.

() Gail. observat. 2, 20, 23.

as that in all other courts, in the trials which could respectively be brought before them. 2 East, 54, 63. The court of King's Bench has decided that a father's declaration of the place of the birth of his son is not evidence after the father's death. 8 East, 539. But it would not, probably, be difficult to prove that this is of the nature of pedigree, and ought to be admitted, as the father's declaration of the time of his son's birth, which has always been legal evidence. In criminal cases, the declarations of a person who relates in extremis, or under an apprehension of dying, the cause of his death, or any other material circumstance, may be admitted in evidence; for the mind in that awful state is presumed to be under as great a religious obligation to disclose the truth as is created by the administration of an oath. But declarations of a deceased person ought not to be received unless the court is satisfied from the circumstances of the case that they were made under the impression of approaching dissolution. Leach's Cases, 400. But the declarations of a felon at the place of execution cannot be received, as he is incompetent to give evidence upon oath, and the situation of a dying man is only thought equivalent to that of a competent witness when he is sworn. Ibid. 276. By the 1 & 2 Ph. & Mar. c. 13, depositions taken before a justice of peace in cases of felony may be read in evidence at the trial, if the witness dies before the trial. But as the statute confines this to felony, and as it is an innovation upon the common law, it cannot be extended to any misdemeanour. 1 Salk. 281.-CHRISTIAN.

It is

19 Although in England the shop-book of a tradesman is not evidence without the oath of the clerk who made the entry, yet in the United States, in the early periods of settlement, as business was generally carried on by the principal, and few shop-keepers kept clerks, the book of original entries, proved by the oath of the plaintiff, has, from the necessity of the case, generally, if not universally, been admitted. It has been confined, however, to the case of goods sold and delivered and work and labour done. necessary, however, that the book should appear to be the book in which the first entry was made cotemporaneously with the original transaction which it professes to record. It is not necessary, indeed, that it should be in the form of a journal or day-book. Entries in ledger-form have been admitted, or in a pocket memorandum-book. Still, the entry must have been made within a reasonable time after the transaction,-not further than twenty-four, or at most forty-eight, hours. It should not be made until the contract is complete, the work done, the goods delivered, or, at least, so far set aside and distinguished as that the property has passed. Where, however, entries are first made on a slate or a blotter, which is afterwards destroyed and the transfer made in due time to the regular book, it is sufficient. The credibility of such a book may be attacked by any circumstances which would go to show that it is not a regular and reliable record of daily transactions. Poultney et al. vs. Ross, 1 Dall. 239. Curren vs. Crawford, 4 Serg. & Rawle, 5. Ingraham vs. Bockius, 9 Serg. & R. 285. Hartley vs. Brookes, 6 Whart. 189. Patton vs. Ryan, 4 Rawle, 408. Rhoads vs. Gaul, 4 Rawle, 404. Parker vs. Donaldson, 2 Watts & Serg. 20. Coggswell vs. Dolliver, 2 Mass. 217. Case vs. Potter, 8 Johns. 211. Linnell vs. Sutherland, 11 Wend. 568. It would encumber this note to go further in the citation of cases from every State in the Union in support of this species of evidence. Since the parties themselves are now competent witnesses in England, the original entry may evidently be effectually used as a memorandum to refresh the memory.-SharS

WOOD.

and merchant in the usual intercourse of trade. For accounts of so recent a date, if erroneous, may more easily be unravelled and adjusted.20

With regard to parol evidence, or witnesses; it must first be remembered, that there is a process to bring them in by writ of subpoena ad testificandum: which commands them, laying aside all pretences and excuses, to appear at the trial on pain of 100l. to be forfeited to the king; to which the statute 5 Eliz. c 9 has added a penalty of 20l. to the party aggrieved, and damages equivalent to the loss sustained by want of his evidence. But no witness, unless his reasonable expenses be tendered him, is bound to appear at all; nor, if he appears, is he bound to give evidence till such charges are actually paid him; except he resides within the bills of mortality, and is summoned to give evidence within the same This compulsory process, to bring in unwilling witnesses, and the additional ter rors of an attachment in case of disobedience, are of excellent use in the thorough investigation of truth :" and, upon the same principle, in the Athenian courts, the witnesses who were summoned to attend the trial had the choice of three things: either to swear to the truth of the fact in question, to deny or abjure it, or else to pay a fine of a thousand drachmas.(v)

22

All witnesses, of whatever religion or country, that have the use of their reason, are to be received and examined, except such as are infamous, or such as are interested in the event of the cause. All others are competent witnesses; though

() Pott. Antiq. b. i. c. 21.

20 The entries in the book of a person deceased, not connected with the parties, are of no more avail than hearsay. But the books of an incumbent respecting the tithes of the parish are evidence for his successor. 5 T. R. 123. 2 Ves. 43.-CHRISTIAN.

21

A copy of the writ, or the substance thereof, (5 Mod. 355. Cro. Car. 540,) should be served personally on each witness and the original shown to him. The usual mode of proceeding against witnesses for disobedience of the writ of subpoena is by the summary process of an attachment for a contempt, (2 Stra. 1054. Cowp. 386. Doug. 561;) but the court will not grant an attachment against a witness unless all the necessary expenses of the journey to and from and the witness's stay at the place of trial be tendered at the time of serving the subpona. 1 H. Bl. 49. 1 Meriv. 191. 13 East, 15. Still, the court will not enter into nice calculations of expense, but consider whether the non-attendance originated in obstinacy or not. 2 Stra. 1150. The same rule prevails in the case of witnesses bona fide brought from abroad. 1 Marsh. 563. 4 Taunt. 699. 6 ib. 88. A witness is not in general entitled to remuneration for loss of time, (1 B. & B. 515. 5 M. & S. 156,) though in some instances it is allowed to attorneys and medical practitioners. Ib. 159. The expenses of making scientific experiments with a view to evidence are not allow. able. 3 B. & B. 72.-CHITTY.

"A Mohammedan may be sworn upon the Alcoran, and a Gentoo according to the custom of India; and their evidence may be received even in a criminal case. Leach's Cases, 52. 1 Atk. 21. But an atheist, or a person who has no belief or notion of a God or a future state of rewards and punishments, ought not in any instance to be admitted as a witness. 1 Atk. 45. B. N. P. 202. See Peake, Rep. 11, where Buller, J., held that the proper question to be asked of a witness is, whether he believes in God, the obligation of an oath, and in a future state of rewards and punishments.-CHITTY.

I have known a witness rejected and hissed out of court who declared that he doubted of the existence of a God and a future state. But I have since heard a learned judge declare at nisi prius that the judges had resolved not to permit adult witnesses to be interrogated respecting their belief of a Deity and a future state. It is probably more conducive to the course of justice that this should be presumed till the contrary is proved; and the most religious witness may be scandalized by the imputation which the very question conveys.

Quakers, who refuse to take an oath under any form, by the 7 & 8 W. III. c. 34 are permitted in judicial proceedings to make a solemn affirmation; and if such affirmation, like an oath, is proved to be false, they are subject to the penalties of perjury. But this does not extend to criminal cases. 8 Geo. I. c. 6. 22 Geo. II. c. 30 and c. 46.

Their affirmations are received in penal actions, as for bribery. See Atcheson vs. Eve ritt, Cowp. 382, where this subject is largely discussed.

Lord Mansfield lays down generally that an affirmation is not refused where the action, though in form of a criminal action, in substance is a mere action between party and party. Lord Mansfield there laments that such an exception had been made by the legislature. CHRISTIAN.