Imágenes de páginas
PDF
EPUB
[ocr errors]

ave proof, very slight evidence is sufficient to rebut and overturn them, and to call on the different parties to establish their respective rights by the ordinary rules of evidence. Peake's Ev. 24.

II. OF WRITTEN EVIDENCE.

17. Acts of Assembly relate either to the commonwealth in general, and are therefore called general acts, or only to the concerns of private persons, and are thence called private acts. Gilb. Ev. 8.

18. A general act is taken notice of by the judges and jury, without being shewed; and hence it is that it hath been said, that the printed statute book is good evidence of general acts; not that the printed statutes are the perfect and authentic copies of the records themselves, but every person is supposed to know the law; and therefore the printed statutes are allowed to be evidence, because they are the hints of that which is supposed to be lodged in every man's mind already. Gilb. Ev. 8, 9, 36.

• Private acts of Assembly may be given in evidence without pleading them specially.' Rev. Code, p. 112. Gilb. 36.

20. Papers read in evidence, though not under seal, may be carried from the bar by the jury.' Ibid.

21. Records of the courts prove themselves, and cannot be proved by witnesses. No razure or interlining shall be intended in them. 10 Co. 92.

22. And nothing shall be admitted as evidence of what was done at another trial, till the record of that trial be produced. Gilb. Ev. 61, 68.

23. But a record of a criminal conviction shall not be given in evidence in a civil action; because such conviction might have been upon the evidence of a party interested in the civil action. Cases temp. Hard

wicke 212.

24. Depositions of witnesses may be read when the witness is dead, but not when the witness is living; for whilst the witness is living, they are not the best evidence the nature of the thing is capable of. Gilb. Ev. 54.

25. Yet they may be read when a witness is sought and cannot be found; for then he is in the same circumstances, as to the party that is to use him, as if he were dead. Ibid.

26. So if it is proved that a witness was subpoenaed, and fell sick by the way; for in this case, likewise, the deposition is the best evidence that can be had, and that answers what the law requires. Ibid.

27. The circumstance that a witness has been summoned and fails to attend, is not sufficient to authorise the reading of his deposition taken de bene esse ; but it must be proved that he is dead, or, if living, unable to attend. 2 H. & M. 31.

28. But a deposition cannot be given in evidence against any person that was not party to the suit; and the reason is, because he had not liberty to cross-examine the witness; and it is against natural justice, that a man should be concluded by proofs in a cause to which he was not a party. Gilb. Ev. 55.

29. Yet this rule admits of some exceptions; as, particularly,' in all cases where hearsay and reputation are evidence; for undoubtedly what a witness, who is dead, hath sworn in a court of justice, is of more

credit than what another person swears he hath heard him say. So a deposition taken in a cause between either parties will be admitted to be read, to contradict what the same witness swears at a trial. Ibid. 53. 30. As to the admission of the information of a witness taken on an examination before a justice, see title CRIMINALS.'

31. Anciently, depositions taken in perpetuam rei memoriam were not published till after the death of the witnesses, because they were no evidence while the witnesses were living; but this practice was found very inconvenient, because thereby witnesses became secure in swearing whatever they pleased, inasmuch as they never could be prosecuted for perjury. Gilb. Ev. 58.

32. What a man who is living hath sworn at one trial can never be given in evidence at another to support him, because it is no evidence of the truth; for if a man be of that ill mind to swear falsely at one trial, he may do the same at another on the same indictment; but what a man says in discourse, without premeditation or expectation of the cause in question, is good evidence to support him, because that shews that what he swears is not from any undue influence. But if a man hath sworn at one trial different from what he hath sworn at another, this is good evidence as to his discredit. Gilb Ev. 62.

33. What a witness swore at a former trial, who is since dead, may be proved, by giving the verdict in evidence, and the oath of the party deceased; but where you give in evidence any matter sworn at a former trial, it must be between the same parties, because otherwise you dispossess your adversary of the liberty to cross-examine. Ev. 61.

34. If a verdict be had on the same point, and between the same parties, it may be given in evidence, although the trial was not had for the same lands. Gilb. Ev. 24. 2 H. & M. 55.

35. But then the verdict must be between those who were parties or privies to it; because, otherwise, a man would be bound by a decision, who had not the liberty to cross-examine; and nothing can be more contrary to natural justice, than that any body should be injured by a determination, that he, or those under whom he claims, was not at liberty to controvert. Gilb. Ev. 25. Peake's Ev. 38.

36. And a verdict will not be admitted in evidence, without like. wise producing a copy of the judgment founded upon it; because it may happen, that the judgment was arrested upon a new trial granted. But this rule doth not hold, in the case of a verdict on an issue directed out of chancery; because it is not usual to enter judgment in such case; and the decree of the court of chancery is equally proof that the verdict was satisfactory, and stands in force. Theory of Ev. 21.

37. No body can take benefit by a verdict that had not been prejudiced by it, had it gone contrary. (Gilb. Ev. 28.) Even though his title turns upon the same point, because if he be an utter stranger to the fact, it is perfectly res nova between him and the defendant. Ibid. 29.

38. But the record of the verdict and judgment, upon a verdict of enquiry, in a suit by the mother of the plaintiff, against a third person, in which record the ground of the judgment does not appear, may be given in evidence, to prove that the mother had recovered her freedom;

not that she was entitled to it, by being descended of parents who were free; but the questions, upon what grounds the judgment in the suit was given, and whether the descendant was born after the mother acquired her right of freedom, or not, ought not to be left open. 2 H.

& M. 193.

A judgment for the recovery of a debt is conclusive evidence; and if a party suffer a judgment to go by default; or on being sued, or distrained for rent, pay the money, protesting that it is not due, he will not be permitted to recover it back, even if he can prove that he paid it before. So, if the plaintiff attempts to prove all the items of an account, and fails, he cannot afterwards establish them; but it is otherwise if he only attempt to prove part. Peake's Ev. 35. 36.

39. A decree in chancery may be given in evidence between the same parties, or all claiming under them; for their judgments must be of authority in these cases, where the law gives them a jurisdiction for it would be very absurd, that the law should give them a jurisdiction, and yet not suffer what is done by force of that jurisdiction to be full proof. Theory of Ev. 36, 37.

40. And note, wherever a matter comes to be tried in a collateral way, the decree, sentence, or judgment of any court, having competent jurisdiction, is conclusive evidence of such matter: and in case the determination is final in the court, of which it is a decree, sentence or judgment, such decree, sentence, or judgment will be conclusive in any other court, having concurrent jurisdiction. Ibid. 37. Peake's Ev. 76.

41. But in these cases, a stranger is always at liberty to shew, that such judgment, sentence, or decree, was obtained by fraud and collusion between the parties to it; for fraud is an extrinsic collateral act, which vitiates the most solemn proceedings of courts of justice; and though it is not permitted to shew that a court was mistaken, it may be shewn that it was misled: but the parties to them are not permitted to avail themselves of their own fraud. Peake's Ev. 76.

42. A deed was offered to be produced, which bore date thirtyeight years before, without proving that the witnesses were dead; and allowed by the court. They said that in general forty years was allowed to be the rule; but the courts never tied themselves up strictly to that rule, but thirty-nine, thirty-eight, nay, thirty-five, have been allowed. 1 Barnard. 348. Peake's Ev. 109, 110

43. Upon a trial at bar, a deed was offered in evidence, executed thirty-six years ago, without proving the hands; which was opposed by the other side; but admitted by the court, who said, there was no fixed rule about it, but that it had often been allowed, where a deed was but twenty-five or thirty years old. 12 Viner 57.

44. In cases where writings have been lost by burning of houses, by rebellion, or when robbers have destroyed them, or the like; the law, in such cases of necessity, allows them to be proved by witnesses. Jenk. 19. Wood, b. 4. c. 4. Peake's Ev. 96, 97.

45. If a man destroys a thing that is designed to be evidence against himself, a small matter will supply it; and therefore the defendant having torn his own note signed by him, a copy sworn was admitted to be good evidence to prove it. L. Raym. 731.

46. Where the defendant himself has the deed which concerns the

land in question, and refuses (after notice) to produce it; a copy thereof will be permitted to be given in evidence, on its being proved to be a true copy. And if the party has no copy, he may produce an abstract, nay, even give parol evidence of the contents; because in such case it may be impossible to give better evidence. In civil causes, the court will sometimes oblige parties to produce evidence which may prove against themselves; or leave the refusal to do it (after proper notice) as a strong presumption to the jury. The court will do it, in many cases, under particular circumstances, by rule before the trial; especially, if the party from whom the production is wanted applies for a favour. Theory of Ev 54.

47. But in a criminal or penal cause, the defendant is never forced to produce any evidence, though he should hold it in his hands in court. 4 Burrows, 2489.

48. The original, in case of private deeds or other instruments, must always be produced, if in the power of the party using it; till which done, no evidence whatever of the contents can be received; but where the original has been destroyed. or lost by accident, as where an original award was lost in a mail which was robbed; or being in the hands of the adverse party, notice has been given him to produce it; then an examined copy, or even parol evidence of the contents, being the best evidence in the power of the party, is received; it being first proved that the original, of which such secondary evidence is offered, was a genuine instrument. Peake's Ev. 96, 97.

49. If the original instrument be supposed to be in the hands of a third person, he should be served with a subpana duces tecum, to produce it; and lest he should have delivered it to the adverse party be fore the service of the subpana, it may be prudent also to give notice to the latter to produce it. But, if after service of the subpana the per. son in whose possession the instrument then was delivers it to the other party, for the purpose of avoiding the effect of the writ, this will not render it necessary to give him notice to produce it, but the party so calling for it may, in such case, give parol evidence of its contents. Peake's Ev. 97.

50. If there be a subscribing witness who is living, and in a situation to be examined, he alone is competent to prove the execution, because he may know and be able to explain facts attending the transaction, which are unknown to a stranger; and for this reason, a confession or acknowledgment of the party to the deed, whether it be offered as evidence against him, or against a third person, will not excuse this testimony. This rule of evidence extends to all cases, whether the deed be an existing instrument, or cancelled, and even if it be lost, and paro evidence given of its contents, the subscribing witness, if known, must be called; but if he is not known, any other person who has seen it is a competent witness Peake's Ev 97, 98.

51. If there be no subscribing witness to a deed, or such witness being called denies having seen the instrument executed; or it appear that the name of a fictitious person has been put as a witness by the party himself who executed the deed; or the person really attesting it at the time of the execution of the deed interested in it, and continues so at the time of the trial; in these

cases, proof of the hand-writing of the party will be sufficient; and, if the instrument, on the face of it, purport to be sealed and delivered, such proof alone is strong evidence for a jury to presume that the other formalities were complied with. Peake's Ev 98, 99.

52. When the subscribing witness is dead, or absent in a foreign country, at the time of the trial, whether for a permanent residence, or temporary purpose, or by the commission of some crime, or the accrual of some interest subsequent to the execution of the instrument, he has become an incompetent witness; proof of his handwriting is the next best evidence which can be given. In the first case, viz. where he is dead, this alone has been held sufficient; but in the others, it has been usual (and in one case was held to be necessary) to prove the hand writing of the party to the deed also, and, in all these cases, a foundation must first be laid, by proving the situation in which the witness stands. Peake's Ev. 100, 101.

53. It frequently happens that there are more than one witness to a deed (and in case of a will of lands more are expressly required) yet in these cases it is sufficient if one be called; but if they are all dead, the deaths of all should be proved before evidence is received of the hand-writing of either, for until it appears that neither of them is living, the other is not the best evidence which the nature of the case will admit of. Peake's Ev. 101, 102.

54. The belief that it is the hand-writing of such a person is always received as presumptive evidence of the fact, either in civil or criminal cases. But the person who speaks to that belief must have such a knowledge as enables him to form it, such as having seen the party write, or having received letters from him in a course of correspond. ence; barely having seen letters purporting to be franked by him, or other papers, which he has no authentic information are of the party's hand-writing, is not sufficient. Peake's Ev. 102.

55. Where a rent charge was granted by deed, and the deed hap pened to be lost, it was said by Lord Hardwicke, the plaintiff cannot read a copy in evidence at law, but must either set up a prescriptive title to the rent, from a constant and uninterrupted payment, or he must bring his bill in equity, to be relieved against the accident of the original's being lost. And the same rule holds in case of a bond; for though an hundred witnesses could prove the substance of it, yet it is not sufficient at law, for the plaintiff must declare upon it, setting forth that he produceth it in court. 2 Atk. 6!. Gilb. Ev. 84.

56. If a bond or other deed be pleaded with a profert, and the defendant plead non est factum, and the plaintiff produce the bond, &c. at the trial, he will be nonsuited. 4 East. 585.

57. But if the bond or deed be lost or destroyed, or in the pos session of the adverse party, the want of a profert may be excused. 3 Term. Rep. 151. See as to the form of excusing the want of profert, 2 Chitty on Pleading, 153. Hening's Amer. Pleader, title⚫ DEBT.'

58. An indenture to guide the uses of a common recovery was of fered in evidence, but the seals were torn off; yet it being proved to have been done by a little boy, it was allowed to be read. Palm. 402. See 11 Mod. 11.

59. If, upon a collateral issue, it is to be proved that such a one was

« AnteriorContinuar »