Foster; and by the judges in the commission, on the trial of the rebels in 1746 (3).

With regard to all collateral facts, which do not conduce to the proof of the overt acts, it may be laid down as a general rule, that whatever was evidence of them at common law is still good evidence under the statute (4). Such facts may therefore be proved by a single witness. Thus, in Vaughan's case (5), where the prisoner endeavoured to prove himself a subject of France, the counsel for the crown produced evidence of his being born in Ireland; and, on its being objected by the prisoner's counsel, that there was but one credible witness to that fact, Lord Holt, C. J. said, "that it is no overt act; if there be one witness to that, it is enough: there need not be two witnesses, to prove him a subject."

From the above-cited cases, it appears now to be an established rule, that a full and voluntary confession by the prisoner of the overt acts charged against him ïs of itself sufficient evidence to warrant a conviction. And, although Mr. Justice Foster suggests (6), that "the rule, for admitting a confession against the prisoner, ought not to extend further than to a confession made during the solemnity of an examination before a magistrate or before some person having authority to take it, when the party may be presumed to be properly upon his guard and apprised of its danger," no distinction of this kind is to be found in the authorities before mentioned. On the contrary, in Francia's case the judges resolved, that the confession would be evidence, whether made before a magistrate or in the course of conversation (1). And there appears to be no solid ground for such a distinction; as confessions are admissible in trials for high treason, precisely on the same principle, which made them evidence at common law. The observations of Mr. Justice Foster relate to the,effect

(3) Fost. Disc. p. 11. n. (†). 1

East P. C. 134.

(4) Fost. Disc. 242.

(6) Fost. Disc. 243. 4 Black. Com. 356.

(1) See Burnet, J. MS. cited 1

(5) 5 State Tr. 17. Fost. Disc. East P. C. 133., and Kelyng 19.

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rather than to the admissibility of this sort of evidence, and are equally applicable to confessions in any other criminal case. Hasty confessions, he says, (2), made to persons having no authority to examine, are the weakest and most suspicious of all evidence. Proof may be too easily procured words are often mis-reported, (whether through ignorance, inattention, or malice-it mattereth not to the defendant he is equally affected in either case :) they are extremely liable to misconstruction: and withal, this evidence is not, in the ordinary course of things, to be disproved by that sort of negative evidence, by which the proof of plain facts may be and often is confronted."

SECT. VI.

Of the Admissibility of the Party injured, as Witness in Criminal Prosecutions.

Ir is a general rule, that in criminal prosecutions the injured party may be a witness: although on the conviction of the prisoner he will in many cases be entitled to a reward.*

(2) Fost. Disc. 243.

* A reward of 401. is granted for apprehending and prosecuting to conviction highway robbers, (4 W. & M. c. 3. s. 2.,) offenders against the acts for preventing counterfeited coin, &c. (St. 6 W. 3. c. 17. s. 9.: 15 G. 2. c. 28. s. 7.,) prisoners charged with burglary or breaking and entering houses in the day-time, (St. 5 Ann. c. 31. s. 4.,) or charged with taking rewards for helping to stolen goods without prosecuting the felon, (St. 6 G. 1. c. 23. s. 9.) A reward of 501. is granted for apprehending and convicting smugglers who oppose custom-house and excise officers by force of arms, &c. (St. 9 G. 2. c. 35. s. 11.,) or offenders against the Black Act, (St. 9 G. 1. c. 22. s. 12. :) and a reward of 101. for apprehending and convicting stealers of sheep or other cattle. The apprehenders of highway robbers are also entitled to the robber's goods found upon him, provided they were not before stolen. By the stat. 21 Hen. 8. c. 11., the person from whom money or goods have been stolen, is entitled to restitution, on the conviction of the robber. By the stat. 5 Eliz. c. 9. s. 8., persons con

It is the constant practice on an indictment for robbery, to admit the evidence of the person who has been robbed; and it is not a sufficient objection, that he will be entitled to the restitution of his property, on the conviction of the offender (a). The same evidence is admitted in prosecutions for a cheat (1), or for perjury (2); and, in the case of perjury, it is not material, whether he has or has not satisfied the judgment in the suit in which the perjury was committed. It was, indeed, at one time thought an indispensable requisite to show the judgment satisfied (3); on the supposition, that in case of his procuring a conviction, he might use it for the purpose of obtaining relief in equity against the judgment. But, as it is now an established rule, that a court of equity will not grant relief on a conviction, which proceeds on the evidence of the prosecu tor (4), there can be no objection to his being admitted a (1) Parris's case, 1 Vent. 49. 2 overruling the three last mentioned Sid. 431. S. C. R. v. Macartney, 1 cases. Salk. 286.

(2) R. v. Broughton, 2 Str. 1230. R. v. Boston, 4 East 581. contra. R. v. Ellis, 2 Str. 1104. R. v. Nunez, 2 Str. 1042., R. v. Whiting, 1 Salk. 283. But Lord Mansfield, in Abraham q. t. v. Bunn, 4 Burr. 2255. cites the case of R. v. Broughton as

(3) R. v. Eden, 1 Esp. N. C. P. 97. R. v. Dalby, Peake N. P. C. 12. (b).

(4) Bartlet v. Pickersgill, cited in Abraham v. Bunn, 4 Burr. 2255. by Ld. Mansfield, C. J., and in R. v. Boston, 4 East 577. by Ld. Ellenborough.

victed of perjury within that act are subject to certain forfeitures, a moiety of which is for the party grieved, and to be recovered by action. By St. 25 G. 2. c. 36. s. 11., in case of a conviction of felony, the prosecutor is entitled to his expenses of prosecution, as may seem reasonable to the Court, on consideration of his circumstances; and, in the case of a writ of certiorari obtained by a person who had been indicted before the quarter sessions, the party injured prosecuting will be entitled to costs on the conviction of the defendant, by St. 5, 6 W. 3. c. 11. s. 3. It may be observed generally, of ́ all those cases, that such circumstances will not affect the competency of the witness. If his evidence were to be excluded, the very object of the legislature would in most cases be entirely defeated.

(a) Vide Commonwealth v. Moulton, 9 Mass. Rep. 30.

(b) Vide Rex v. D'Faria, Peake 104, which was an indictment for perjury in a suit in the prerogative court respecting a will, and the will having been established, the executrix and residuary legatee was held a competent witness.

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witness (c). And in other cases, the party aggrieved will be allowed to give *evidence on a criminal prosecution, as he cannot afterwards avail himself of the record of conviction in any future suit, in order to prove the criminal act (1). For this reason, it is conceived, on an indictment for perjury the party injured may be a witness, whether the prosecution is by the common law or founded on the stat. 5 Eliz. c. 9., which gives him half the forfeiture incurred; for, if in an action to recover his moiety he would be precluded from giving the conviction in evidence, the objection against his competency seems to be removed.* In the case of An exception, however, has been made to this general forgery. rule, in the case of a prosecution for forgery, in which the party, by whom an instrument purports to be made, is not admitted to prove it forged, if he would either be liable to be sued upon the instrument, (supposing it genuine), or be thereby deprived of a legal claim against another (2). And it seems to be the prevailing opinion, that his incompetency is not confined to the single point of falsifying the handwriting, but that he is equally incompetent to prove any other fact, which contributes to the proof of the forgery, or, in other words, any fact conducive to the general conclusion. This subject was much discussed in a late case (3),

(1) Bartlet v. Pickersgill, 4 East 577. n. (b). R. v. Boston, 4 East 581. Smith v. Rummens, 1 Campb. N. P. C. 9. Hathaway v. Barrow, 1 Campb. N. P. C. 151. 1 Taunt. 520.

(2) Watt's case, Hard. 331. 3 Salk. 172. S. C. Rhodes's case, 2 Str. 728. ↑ Leach Cr. C. 29. S.

C. Russel's case, 1 Leach 10. Caffy's case, 2 East's P. C. 995. Taylor's case, 1 Leach 255. Crocker's case, 2 New Rep. 87.

(3) Crocker's case, Salisb. Ass. 1805, cor. Le Blanc, J., 2 Bos. and Pul. N. R. 87. 90. R. v. Bunting, 2 East P. C. 996.

* Ruled contra in an old case; Bacon's case, 2 Roll. Abr. 685; Bull. N. P. 289. S. C. Gilb. Ev. 111. S. C.

(c) Vide State v. Hasset, Tayl. 55. On an indictment under the act of Congress of March 26, 1804, for destroying a vessel at sea, with intent to prejudice the underwriters, the president of the Insurance Company was admitted to prove the order for insurance, and the subscription to the policy. The United States v. Johns, 4 Dall. 412.

where, on a prosecution for forging a promissory note, on which there was an indorsement in the prisoner's handwriting, that a year's interest had been paid, one of the points reserved was, whether the person, by whom the note purported to be made, ought to have been permitted to prove that he had never paid any interest on the note, *as was pretended by the indorsement. This evidence was received on the trial, the fact of the forgery having been first proved; but, according to the report, it seems to have been generally understood that the majority of the judges considered the evidence inadmissible.* When, however, the fact is merely collateral, and does not in any way contribute to the proof of the forgery, as, where a witness is called to prove himself the person, whom the prisoner intended to personate or describe, in such a case his testi mony has been admitted (1).

It is scarcely necessary to add, that if the witness would not incur any loss, nor be liable to a suit, whatever may be the result of the prosecution, his evidence ought to be received (a). Thus, on an indictment for forging a bank note, in the name of a cashier of the bank of England "for the governor and company," the cashier, not being chargeable, may be a witness (2). And on a prosecution for forg

(1) Parr's case, 2 Leach Cr. C. 487. 491.

2 East P. C. 997. S. C.

(2) Newland's case, 1 Leach, Cr. C. 350.

* Lord Ellenborough, C. J., the Chief Baron Macdonald, Mr. Justice Lawrence, and Mr. Justice Le Blanc, thought the witness admissible, because it had been sufficiently proved before, that the note was not signed by him; and they thought him admissible to all points except that of the forgery. Some of the other judges seemed to think, that to points perfectly collateral he would have been admissible, but they considered the point, to which he was called, as contributing to prove the forgery. M. S.

(a) But in a case at the Old Bailey, Sept. 1792, the obligor in a bond being indicted for altering a receipt for interest, so as to make it appear a receipt for principal and interest, Mr. Baron Hotham held the obligee to be an incompetent witness, although he had obtained a verdict invalidating the receipt, as judgment had not been entered up. 2 Evan's Poth. 315.

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