Book III. writings, must be attefted and verified by parol evidence of witneffes. And the one general rule that runs through all the doctrine of trials is this, that the best evidence the nature of the cafe will admit of fhall always be required, if poffible to be had; but, if not poffible, then the best evidence that can be had shall be allowed (10). For if it be found that there is any better evidence exifting than is produced, the very not producing it is a prefumption that it would have detected fome falfehood that at prefent 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 pofitively proved to be burnt 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 it's contents. So, no evidence of a difcourfe 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 hearfay evidence, or an account of what perfons deceased have declared in their life-time: but fuch evidence will not be received of any particular facts (11). So too, books of account, or shop-books,

evidence was produced, that the deed had actuaily been in exift. ence for thirty years.

(10) No rule of law is more frequently cited, and more gene rally mifconceived, than this. It is certainly true when rightly understood; but it is very limited in it's extent and application. It fignifies nothing more than that, if the best legal evidence cannot poffibly be produced, the next beft legal evidence fhall be admitted. Evidence may be divided into primary and fecondary; and the fecondary evidence is as accurately defined by the law as the primary. But in general the want of better evidence can never juftify the admiffion of hearfay, interefted witneffes, or the copies of copies, &c. Where there are exceptions to general rules, thefe exceptions are as much recognized by the law as the general rule; and where boundaries and limits are established by the law for every cafe that can poffibly occur, it is immaterial what we call the rule, and what the exception.

(11) In cafes of customs and prefcriptive rights, hearsay or traditional evidence is not admitted until fome inftances of the cuftom

or

are not allowed of themselves to be given in evidence for the owner; but a fervant who made the entry may have recourse to them to refresh his memory: and, if fuch fervant (who was accustomed to make those entries) be dead, and his hand be proved, the book may be read in evidence; for as r Law of nifi prius, 266.

And

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, hearsay is also received refpecting pedigrees and the death of relations abroad. Bull. N. P. 294. 2 Ep. 784. What has been faid in conversation in the hearing of the other party, if not contradicted by him, may be given in evidence; for not being denied, it amounts to a fpecies of confeffion. But it can only be received where it must be prefumed to have been heard by the party, and therefore in one cafe the court stopped the witness from repeating a conversation, which had passed in a room where the witness was but at the time whilft fhe had fainted away. It has been the practice of the quarter-feffions to admit the declarations of paupers refpecting their fettlements to be received as evidence after their death. See 3 T. R. 707. where the judges of the king's bench were divided upon the legality of this practice, and where the fubject of hearsay evidence is much difcuffed. In criminal cafes, the declarations of a person, who relates in extremis, or under an apprehenfion of dying, the cause of his death, or any other material circumftance, may be admitted in evidence; for the mind in that awful state is prefumed to be as great a religious obligation to disclose the truth, as is created by the administration of an oath. But declarations of a deceased perfon ought not be received, unless the court is fatisfied, from the circumftances of the cafe, that they were made under the impreffion of approaching diffolution. Leach's Cafes, 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 this fituation is only thought equivalent to that of a competent witnefs, when he is fworn. Ibid. 276. By the 1 and 2 Ph. & Mar. c. 13. depofitions taken before a juftice of peace in cafes of felony, may be read in evidence at the trial, if the witnefs dies before the trial. But as the ftatute confines this to felony, and as it is an innovation upon the common law, it can not be extended to any misdemeanour. Salk, 281.

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tradefmen

BOOK III, tradefmen are often under a neceffity of giving credit without any note or writing, this is therefore, when accompanied with fuch other collateral proofs of fairness and regularity', the best evidence that can then be produced. However this dangerous fpecies of evidence is not carried fo far in England as abroad; where a man's own books of accounts, by a diftortion of the civil law (which feems to have meant the fame thing as is practifed with us) with the fuppletory oath of [369] 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. 1. c. 12. (the penners of which feem to have imagined that the books of themselves were evidence at common law) confines this fpecies of proof to fuch tranfactions as have happened within one year before the action brought; unless between merchant and merchant in the ufual intercourse of trade. For accounts of fo recent a date, if erroneous, may more eafily be unravelled and adjufted (12).

WITH regard to parol evidence, or witneffes; it muft first be remembered, that there is a procefs to bring them in by writ of fubpoena ad teftificandum: which commands them, laying afide all pretences and excufes, to appear at the trial on pain of 100l. to be forfeited to the king; to which the ftatute 5 Eliz. c. 9. has added a penalty of 10l. to the party aggrieved, and damages equivalent to the lofs fuftained by want of his evidence. But no witnefs, unlefs his reafonable expences be tendered him, is bound to appear at all;

f Salk. 295.

Gail. obfervat. 2. 20. 23. Inftrumenta domeftica, feu adnotatio, fi non aliis quoque adminiculis adjurventur, ad probationem fola non fufficiunt. (Cod. 4.

19. 5.) Nam exemplo perniciofum eft, ut ei fcripturae credatur, qua unufquifque fibi adnotatione propria debitorem conftituit. (Ibid. I. 7.)

(12) The entries in the book of a perfon deceased not connected with the parties are of no more avail than hearfay. But the books of an incumbent refpecting the tithes of the parish are evidence for his fucceffor. 5 T. R. 123. 2 Vef. 43.

nor,

nor, if he appears, is he bound to give evidence till fuch charges are actually paid him: except he refides within the bills of mortality, and is fummoned to give evidence within the fame. This compulfory procefs, to bring in unwilling witneffes, and the additional terrors of an attachment in cafe of difobedience, are of excellent ufe in the thorough inveftigation of truth (13): and, upon the fame principle, in the Athenian courts, the witneffes who were fummoned to attend the trial had their choice of three things: either to fwear to the truth of the fact in queftion, to deny or abjure it, or elfe to pay a fine of a thousand drachmas ".

ALL witneffes, of whatever religion or country, that have the ufe of their reafon (14), are to be received and examined, except fuch as are infamous, or fuch as are interested in the event of the caufe. All others are competent witneffes; though the jury from other circumftances will judge of their credibility(15).

u Pott. Antiq. b. I. c. 21.

(13) The ufual mode of proceeding against witnesses for difobedience of the writ of fubpœna is by the fummary process of an attachment for a contempt; but the courts will not grant an attachment against a witnefs, unless all the neceffary expences of the journey, and the witness's ftay at the place of trial, be tendered at the time of ferving the fubpoena. H. Bl. 49.

(14) A Mahometan may be fworn upon the Alcoran, and a Gentoo according to the cuftom of India, and their evidence may be received even in a criminal cafe. Leach's Cafes, 52. 1 Atk. 21. But an Atheist, or a perfon who has no belief or notion of a God, or a future ftate of rewards and punishment, ought not in any inftance to be admitted as a witnefs. 1 Atk. 45.

(15) "The old cafes upon the competency of witnesses have "gone upon very fubtle grounds. But of late years the courts "have endeavoured, as far as poffible, confiftent with authorities,

to let the objection go to the credit, rather than to the compe"tency of a witnefs." Lord Mansfield, 1 T. R. 300.

It feems now to be eftablished, that if a witnefs does not immediately gain or lofe by the event of the caufe, and if the verdict in the cause cannot be evidence either for or against him in any other

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Infamous perfons are fuch as may be challenged as jurors, propter delictum; and therefore never shall be admitted to give evidence to inform that jury, with whom they were too scandalous to affociate. Interested witneffes may be examined upon a voir dire, if fufpected to be fecretly concerned in the event; or their intereft may be proved in court. Which laft is the only method of supporting an objection to the former class; for no man is to be examined to prove his own infamy (16). And no counsel, attorney, or other person, intrufted with the secrets of the cause by the party himself, shall be compelled, or perhaps allowed, to give evidence of fuch conversation or matters of privacy, as came to his knowlege by virtue of such trust and confidence (17): but he may v Law of nifi prius. 267.

other fuit, he shall be admitted as a competent witness, though the circumftances of the cafe may in fome degree leffen his credibility. Bent v. Baker, 3 T. R. 27.

A servant of a tradesman from neceffity is permitted in an action by his master to prove the delivery of goods, though he himself may have purloined them; but in an action brought against the master for the negligence of his fervant, the fervant cannot be a witness for his master without a release; for his mafter may after. wards have his action against the servant, and the verdict recovered against him may be given in evidence in that action, to prove the damage which the mafter has sustained. 4 T. R. 589.

(16) A witness may be examined with regard to his own infamy, if the confeffion of it does not fubject him to any future punishment; as a witness may be asked if he has not stood in the pillory for perjury. 4 T. R. 440.

(17) But the principles and policy of this rule reftrain it to that confidence only, which is placed in a counfel or folicitor, and which muft neceffarily be inviolable, where the use of advocates and legal affiftants is admitted. But the purposes of public juftice fuperfede the delicacy of every other fpecies of confidential communication. In the trial of the duchefs of Kingston it was determined that a friend might be bound to disclose, if neceffary in a court of juftice, fecrets of the most facred, which one fex could repofe in the other. And that a furgeon was bound to communicate