tenders a release on his part, which is refused, he may be examined as a witness. Ibid.

117. A man who is interested in the event of a suit is objectionable only when he comes to prove a fact consistent with his interest; for if the evidence he is to give be contrary to his interest, he is the best possible witness that can be called, and no objection can be made to him by the party in the cause. In this case, however, he may sometimes object to be examined, because his evidence may subject him to future inconvenience. Peake's Ev. 160, 161.

118. As no man can be compelled to give evidence which tends to charge himself with a crime; so the same rule of law protects a man's pecuniary interest; and, therefore, he is not compellable to give any answer which may subject him to a civil action, or charge himself with a debt. But as a man cannot, by making his interest the same as that of the party who has a right to his testimony, deprive such party of the benefit of it; so neither can be, by voluntarily acquiring an interest the other way, enable himself to object to give evidence; and therefore, where a subscribing witness became bail for the maker, he was compelled to give evidence of the execution. Peake's Ev. 184,

185.

119. How far a witness shall be compelled to answer questions tending to prove him infamous, or even disgraced, has been the subject of much discussion, and seems not to be fully settled. See Peake's Ev. 130, 132. 1 Hall's Amer. L. Journ. 223, the opinions of the twelve judges of England.

120. It is no good exception against a witness, that he hath a maintenance from the commonwealth; for every one may maintain his own witnesses. 2 Haw. 434.

121. A trustee may be a witness, if he hath released his trust; but not if he hath conveyed it over. Sid. 315.

122. An heir at law may be a witness concerning the title to the land, but the remainder-man cannot, for he hath a present interest, but the heirship is a mere contingency. 1 Salk. 283.

123. A witness laying a wager in the cause is no hindrance to his being a witness; for the other has an interest in his evidence, which he cannot deprive him of. Farest. 31. Str. 652. Peake's Ev. 158.

124. If a person apprehends himself to be interested in, though in strictness of law he is not, yet he ought not to be sworn; as, where the witness for the plaintiff apprehended that if the plaintiff should recover, he would remit a claim of some money which he (the plaintiff) had upon this witness; but if he should not recover, he would not remit it; although in strictness of law his recovering or not recovering in that case would not alter the claim; or, as in case where the witness owned himself to be under honorary, though not under a binding engagement to pay the costs. Str. 129.

125. But the authority of the above rule has been much shaken by modern determinations; it being now held, that an honorary obligation, which will be affected by the event of the cause, is not an objection to the competency of a witness" (1 Cowp. 144.) the courts having of late years endeavoured, as far as possible, to let the objection go to the credit rather than to the competency. 1 Cowp. 146. note.

And sir James Mansfield, chief justice, is represented to have said,

"that the same honour by which the witness considered himself bound to pay a sum of money, for which he was not liable, would lead him to speak the truth between the parties." 1 Cowp. 145.

126. If a man hath been examined on interrogatories, being at the time disinterested, and afterwards becomes interested, his deposition may be given in evidence; because his evidence must be taken as it stood at the time of his examination. So, if a witness to a bond becomes afterwards representative of the obligee, his hand must bc proved in like manner as if he were dead. 2 Atk. 615. 2 Vezey 44.

127. Interested witnesses may be examined upon a voir dire, if suspected to be secretly concerned in the event; or their interest may be proved in court. 3 Bl. Com. 370.

128. It seems agreed, that the husband and wife being as one and the same person, in affection and interest, can no more give evidence for one another, in any case whatsoever, than for themselves; and that regularly the one shall not be admitted to give evidence against the other, by reason of the implacable dissension which might be caused by it, and the great danger of perjury from taking the oaths of persons under so great a bias, and the extreme hardships of the case. Yet some exceptions have been allowed in cases of evident necessity; as in the lord Audley's case, who held his wife, while his servant by his command ravished her; or, where a man is indicted on a forcible marriage on the statute; or, where either a husband or wife have cause to demand sureties of the peace, against the other. 2 Haw. 431, 432.

129. In suits in which the husband is not immediately and certainly interested, but may be so eventually, the wife is a competent witness; but the jury are to judge of her credibility. Thus, in trover, by R against B, for goods which had been lent by B to the wife of C, and conveyed by C to R, the wife of C is a competent witness. M. 154. See Peake's Ev. 175.

1 H. &

130. On an indictment for bigamy, the first wife cannot be a witness, but the second may; for the second marriage is void. Bull. N. P. 287. Peake's Ev. 174.

131. So, if a woman be taken away by force and married; on an indictment against the husband de facto, founded on the statute, she is a witness to prove the fact. Gilb. Ev. 120.

132. So, on an indictment against the husband for an assault on the wife, she may be a witness. Stra. 633.

133. In an action against the husband for his wife's wedding clothes, the wife's mother was suffered to give evidence that they were bought on the credit of her own husband. Str. 504.

134. So, the declarations of the wife, as to the price for nursing the defendant's child, have been given in evidence to charge the busband; such matters being usually transacted by women. (Stra. 527.) But this case has been denied to be law See Esp. N. P. 722.

135. In an action for wages earned by the wife of the plaintiff from the defendant's intestate, the wife's acknowledgment of the receipt of twenty pounds was not allowed to be given in evidence against her husband. Stra. 1092.

136. The wife is always permitted to swear the peace against the husband: and her affidavit has been permitted to be read on the appli

cation to the court, for an information against the husband, for an attempt to take her away after articles of separation. 'Esp. N. P.

721.

137. How far a person shall be admitted as a witness to invalidate an instrument which he has subscribed, and whether the rule applies only to negotiable instruments, has been a question much agitated, and seems not yet to be fully settled; the court of King's Bench having adopted one rule, and that of the Common Pleas another. See 1 Day's Rep. 17, 19, note (d). Ibid. 301. 4 Burr. 2251. 3 Term Rep. 27. Ibid. 707. 7 Term Rep. 60. Ibid. 601. 1 Bl. Rep. 365. l'Esp. Rep. (Day's edit.) 98, note (2.) Ibid. 177, note (1.) 2 'Esp. Rep. (Day's edit.) 488, note (1)

138. The person in whose name an instrument has been forged has been uniformly held to be an incompetent witness to prove the forgery; and this is considered by lord Ellenborough as an anomaly in the law of evidence. (4 East. 582. 2 East's Cr. L. 994. See l'Esp. Rep. (Day's edit.) 98, note (1.) where the cases are collected with great accuracy, and the different rules of the several state courts, on this point, shewn.

139. The old cases upon the competency of witnesses have gone upon very subtle grounds. But of late years the courts have endeavoured as far as possible, consistent with those authorities, to let the objection go to the credit rather than to the competency of a witness. 3 Term Rep. 32.

140. An objection to the competency of a witness may be made at any stage of the proceedings. l'Esp. Rep. 37.

Alibi evidence lies under great and general prejudice, and ought to be heard with uncommon caution. But if it appears to be founded in truth, it is the best negative evidence that can be offered; it is really positive evidence, which in the nature of things necessarily implies a negative. And, in many cases, it is the only evidence an innocent man can offer. Fost. 368.

141. It seems agreed, that it is no exception against a person's giving evidence, either for or against a prisoner, that he is one of the judges or jurors who are to try him. 2 Haw. 432.

142. But, where a juror is called upon to give his evidence, he ought to give it upon oath openly in court, and not be examined privately by his companions. Bac. Abr. Evid. A. 2. 1 Rev. Code, p

101. sect. 14.

143. It hath been long settled, that it is no exception against a wit ness, that he hath confessed himself guilty of the same crime, if he hath not been indicted for it; for if no accomplices were to be admitted as witnesses, it would be generally impossible to find evidence to convict the greatest offender. 2 Haw. 432.

144. “But an approver shall in no case be admitted." 1 Rev. Code, p. 106.

145. It hath been adjudged, that where three persons are sued in three several actions on the statute, for a supposed perjury in their evidence concerning the same thing, they may be good witnesses in such actions for one another. 2 Haw. 432.

146. "No negro, mulatto, cr Indian, shall be admitted to give evi

dence, but against or between negroes, mulattoes, or Indians." 1 Rev. Code, p. 278. sect. 3. Ibid. p. 412. sect. 4.

147. There were two witnesses to a deed, and one of them was blind. It was ruled by Holt, chief justice, that such deed might be proved by the other witness, and read; or might be proved, without proving that this blind witness is dead; or without having him at the trial, proving only his hand. Ld. Raym. 734.

148. If a witness is beyond the sea, it is usual to prove his hand, and that that he is beyond the sea. 12 Viner 224.

149. There were two witnesses to a bond, one in Africa, and the other in Bedlam, mad: on an order to prove an exhibit, viva doce, in chancery, a witness proved these facts, and their hands to the bond, as if dead. Ibid.

150. If a witness to a deed is dead, it is not sufficient to prove his hand writing, but it must be proved also that he is dead. 2 Atk. 48.

151. And where a person has lived abroad some years, after attesting a deed, there must be strict proof of his death; otherwise it is, where the witness has lived constantly in the country, from the time of subscribing his name to the day of his death; for in that case, a slight evidence of his death is sufficient, especially where the person who proves his hand knew him intimately, and swears that he believes him dead. Ibid.

152. But where the witness is dead, it is sufficient to prove the witness's hand, without proving the hand of the party. 12 Viner 224.

153 The sayings of a dead man are not to be given in evidence, to prove a particular fact, they are only to be admitted in proof of general usages and customs; but as for a particular fact, lying in the knowledge of a particlar person, by his death the evidence is lost. St. Tr. V. 5.

456.

154. And it hath been agreed, that the evidence, given by a witness at one trial, cannot in the ordinary course of justice be made use against a defendant, on the death of such witness, at another trial. (2 Haw. 430) But this must be understood in criminal cases, for in civil actions the practice is otherwise. See Onsl, N. P. 231..

155. In the case of murder, what the deceased declared after the wound given may be given in evidence. 12 Finer 118. Peake's Ev.

15, 16.

156. But where such declaration is reduced into writing, the writing itself must be produced, and not evidence thereof given viva voce. Ibid. 119.

157. It is a general rule that hearsay is no evidence; for no evidence is to be admitted but what is upon oath; for if the first speech was without oath, another oath that there was such speech makes it no more than a bare speaking, and so of no value in a court of justice; and besides, the adverse party had no opportunity of a cross examination; and if the witness is living, what he has been heard to say is not the best evidence that the nature of the thing will admit. But though hearsay ought not to be allowed as direct evidence, yet it may be allowed in corroboration of a witness's testimony, to shew that he affirmed the same thing before on other occasions, and that he is still constant to himself. So, where the issue is on the legitimacy of a persqn, it seems the practice to admit evidence of what the parents have

been heard to say, either as to their being or not being married, for the presumption arising from the cohabitation is either strengthened or destroyed by such declaration, which, although not to be given in evidence directly, yet they may be assigned by the witness as a reason for his belief one way or other. So, hearsay is good evidence to prove who was a man's grand-father when he married, what children he had, and the like, of which it is not reasonable to presume that there is better evidence. So, to prove that a man's father or other kinsman beyond the sea is dead, the common reputation and belief of it in the family gives credit to such evidence; and for a stranger it would be good evidence, if a person swore that a brother or other near relation told him so, which relation is dead. So, in questions of prescription, it is allowable to give hearsay evidence, in order to prove general reputation; and where the issue was of a right to a way over the plaintiff's close, the defendants were admitted to give evidence of a conversation between persons not interested, then dead, wherein the right to the way was agreed. Theory of Ev. 111, 112. Peake's Ev. 10, 11, 12, 13.

158. Any person absenting himself beyond sea, or elsewhere, for seven years successively, shall be presumed to be dead, in any case wherein his death shall come in question, unless proof be made that he was alive within that time. But an estate recovered in any such case, if in a subsequent action or suit the person presumed to be dead shall be proved to be living, shall be restored to him who shall have been evicted; and he may moreover demand and recover the rents and profits of the estate, during such time as he shall have been deprived thereof, with lawful interest.' 1 Rev. Code, p. 33.

IV. OF PROCESS TO CAUSE WITNESSES TO APPEAR.

159. The compulsory means to bring in witnesses are of two kinds. 1. By process of subpana issued in the commonwealth's name, by the justices, or others, where the trial is to be. 2. Which is the more ordinary and more effectual means (in criminal cases) the justices who commit the offender may at that time, or at any time after, and before the trial, bind over the witnesses to appear at court, and in case of their refusal either to come, or to be bound over, may commit them for their contempt in such refusal. 2 Hale 282.

160. Where a witness is a prisoner in execution for debt, he must be brought up by habeas corpus ad testificandum, to give his evidence. St. Tr. V. 2. 580. V. 4. 37.

161. Witnesses are privileged from arrest by the laws of Virginia. See ARREST.'

6

162 An attachment was granted against a witness for failing to attend, after having been served with a subpoena, and receiving one guinea, and the promise of a guinea a day, during his attendance, and his charges paid; although the party for whom he was summoned had his remedy, by action, on the statute of Eliz. L. Raym. 1529.

163. But to ground an attachment, the service of the subpoena must be on the person of the witness, and not on his servant. And by Lee Ch. J. it hath been solemnly determined, that you must not only have an affidavit of tendering the real fees, but likewise of a tender of rea