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deration for the note, the Court of King's Bench held that the attorney was compellable to disclose that circumstance, in an action brought to recover back the money (1). The communication, said Lord Kenyon, was not here made in contemplation of a suit. On the contrary, the purpose in view had been already obtained; and what was said by the client was from exultation, in having before deceived his attorney as well as his adversary.

(1) Cobden v. Kendrick, 4 T.R. 432.

CHAP. VII.

Of certain general Rules of Evidence.

IF F no objection is made to the competency of a witness, and he is allowed to give evidence, the next question is, what evidence ought to be given; and in what manner is the witness to be examined. It will, therefore, now be necessary to inquire into certain general rules, which have been established, for the purpose of directing the testimony of witnesses, and for the more effectual attainment of the ends of justice. The consideration of these rules will form the subject of the present chapter; and in the next chapter some inquiry will be made into the mode of examining witnesses.

The order, in which it is proposed to consider the subject, is the following;

First, As to the number of witnesses to the proof of a fact;

Secondly, of the nature of presumptive evidence;

Thirdly, That evidence is to be confined to the points in issue;

Fourthly,

Fourthly, That the affirmative of the issue is to be proved;

Fifthly, That the substance only of the issue need be proved ;

Sixthly, That the best evidence is to be given, which the nature of the case admits;

Lastly, That hearsay evidence is not admissible.

SECT. I.

As to the Number of Witnesses, for the Proof of a Fact.

THE general rule at common law is, that a single witness, if credible, is sufficient for the proof of any fact; in which respect the law of England differs from the civil law, where one of the maxims is, "unius responsio non " omnino audiatur." Lord Coke, indeed, has said in his Commentary (1), that "when a trial is by witnesses, as in the case of the challenge of a juror or summons of a ' tenant, the affirmation ought to be proved by two or more witnesses, but, where the trial is by verdict, there the judgment is not given upon witnesses, but upon the verdict, and upon such evidence as is given to the jury they find their verdict." But this distinction has been denied by Lord Holt (2), and the doctrine is said not to be warranted by the authorities cited in its support. By our law, however, the testimony of a single witness will not be sufficient in a few particular cases.

First, On an indictment for perjury, the evidence of In case of one witness is not sufficient to convict the defendant; perjury. because then there would only be one oath against ano

ther.

"To convict a man of perjury," said C. J. Parker,

(1) Co. Lit. 6. b.

(2) Shotter v. Friend, Carth. 144.

In case of treason.

in the case of the Queen v. Muscot (1), "there must be strong and clear evidence, and more numerous than the evidence given for the defendant." It does not appear to have been laid down, that two witnesses are necessary to disprove the fact sworn to by the defendant; nor does that appear to be absolutely requisite. But, at least, one witness is not sufficient; and, in addition to his testimony, some other independent evidence ought to be adduced.

Secondly, It was enacted, for the security of the subject, by stat. 1 Ed. 6. c. 12. § 22., that "No person shall be indicted, arraigned, condemned, or convicted for any offence of treason, petit treason, misprision of treason, unless the offender be accused by two sufficient and lawful witnesses, or willingly without violence confess the same." By the common law one witness would have been sufficient on the trial of those offences; and this is the first act of the legislature, where two witnesses are required. A similar provision is contained in the stat. 5, 6 Ed. 6. c. II. § 12., which enacts, that "No person shall be indicted, arraigned, condemned, convicted, or attainted for any of the treasons or offences in that act mentioned, or for any treasons which then were or hereafter might be, unless the offender should be accused by two lawful accusers, who at the time of the arraignment should be brought, &c., unless the party arraigned should willingly without violence confess the same.” So that two witnesses would at that time have been necessary in treasons relating to the coin of the kingdom. But an alteration in this respect was made by the stat. 1, 2 Ph. & Mary, c. 10. § 12., and 1, 2 Ph. & Mary, c. 11. § 3., which provided, that" in all cases of high treason concerning the current coin, or for counterfeiting the king's signet, privy seal, and great seal, or sign manual, and on trials for bringing counterfeit coin into the realm, or for any offence concerning the impairing, counterfeiting, or forging the cur

(1) 10 Mod. 193.

rent

rent coin, the prisoners should be tried by the same evidence, as they were before the reign of Edward the Sixth (1)." In these cases, therefore, a single witness will now be sufficient; and it has been agreed by all the Judges, that these statutes extend to all offences, touching the impairing of the coin, which should afterwards be made treason (2). The stat. 7, 8 W. 3. c. 3., which relates only to such treasons as induce corruption of blood, enacts in the second section, that "No person shall be tried or attainted of that species of high treason, or of misprision of such treason, but by the oaths and testimony of two lawful witnesses, either both of them to the same overt act, or one of them to one, and the other of them to another overt act of the same treason; unless the party indicted and tried shall willingly without violence in open court confess the same, or shall stand mute, or refuse to plead, or in cases of high treason shall peremptorily challenge above the number of thirty-five of the jury." And by the 4th section it is enacted, "If two or more distinct treasons of divers kinds are alleged in one indictment, one witness produced to prove one of the said treasons, and another witness to prove another of the said treasons, shall not be deemed to be two witnesses to the same treason within the meaning of this act." The stat. 39, 40 G. 3. c. 93. enacts, that "in all cases of high treason, when the overt act alleged in the indictment is the assassination of the king or any direct attempt against his life, or against his person, the prisoner shall be tried according to the same order of trial and upon the like evidence, as if he stood charged with murder." A conviction, therefore, in such a case may proceed on the testimony of a single witness.

The language of the statutes of Edward 6. is, that "the offenders are to be accused by two witnesses," that is, two

(1) The like provision in statute 8,9 W. 3. c. 26. s. 7. and stat. 6 G. 3. c. 53. S. 3.

(2) Gahagan's case, I Leach, Cr. C. 50. 1 East, P. C. 129. S. C.

witnesses

In courts of

equity.

In ecclesias

tical courts.

witnesses are required to prove the offence or overt act of treason; and the stat. of W. 3. expressly confines itself to the proof of the overt acts. With respect to all other acts, therefore, which are merely collateral, the rule of common law is not altered, and one witness is still sufficient. (1)

Thirdly, it is an established principle in courts of equity, that, on a bill praying relief, when the facts charged by the plaintiff, as the ground for obtaining a decree, are proved only by a single witness, and are clearly and positively denied by the answer of the defendant; the court will not grant a decree against the defendant (2). But where the evidence produced by the plaintiff is so far supported and corroborated by proof of concurring circumstances, as to outweigh the denial in the defendant's answer (3), (abstracting from the mind, that the evidence on the part of the plaintiff comes from a disinterested witness (4),) the former rule will not apply; and the evidence of a single witdess, so strengthened and confirmed, will enable the court to decree against the answer. And there are many cases,

in which the court has granted a decree against the defendant on the testimony of a single witness, when his testimony has not been clearly and positively contradicted by the answer. (5)

By the civil law, as was before observed, two witnesses are required for the proof of a fact; and such is the rule in ecclesiastical courts, whose practice is founded upon that law. But even in those courts, if a matter cognizable at common law arises incidentally in an ecclesiastical suit, (as, where a revocation of a will is pleaded, or payment of a le

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