EVIDENCE

In Law, has been defined" anv matter of fact, the effect, tendency, or design of which, when presented to the mind, is to produce a persuasion, affirmation, or disaffirmation of the existence of some other matter of fact." A witne , in a court of common law, is compelled to give his attendance, in civil cases, by subpoena, or by habeas corpus if the witne be in custody. The reasonable expenses both of going and returning must be tendered to the witne when he is served with the subpoena. A witne , refusing to attend on subpoena, may be attached for contempt of court, and is liable to an action at the suit of the party damaged. In criminal cases, the attendance of a witne for the prosecution is enforced either by subpoena, or more usually by the magistrates who take the depositions in the first instance binding him over to appear. His expenses, in a case of felony, are ensured to him by statute. The defendant may compel attendance of his witne es by subpoena. When the witne appears in court, objections may be taken to his competency, and those arising from his ignorance or unbelief, or turpitude of character, ought, in the usual course, to be taken before he is sworn. Incompetency 1. Incompetency from defect of religious principle is where the witne disbelieves or is ignorant of the existence of a God, and of a future state of rewards and punishments. Infidels, therefore, are excluded; but no others of whatsoever sect or opinion. 2. Incompetency from turpitude arises from a conviction for treason, felony, and several misdemeanors; but is removed by pardon, or by reversal of the judgment, or by endurance of the punishment awarded by the sentence. 3. The next source of incompetency is interest; and the general rule on this subject is, that a party is disqualified only by a direct and certain interest in the event of the suit. But it will be obvious that the distinctions arising out of so general a proposition are infinitely minute, and create constant difficulty in practice. The following are a few of the leading rules: — All parties to the suit, although but nominal, are excluded from giving evidence. A prosecutor, in a criminal case, is not a party, nor directly interested in the verdict, and is consequently admitted. A person to whom a liability would immediately result from the verdict is incompetent to give evidence for the party in whose succe he is interested; as, for instance, one who has guaranteed a party against the event of the suit; or a co-partner; or an agent liable to his principal, in the case where a principal is sued for any damage arising from the agent's neglect. A witne is also incompetent where he has an interest in the record; that is to say, where the judgment of the court, if his jjarty succeeded, would be evidence of a matter of fact to entitle him to some legal advantage. In criminal proceedings, however, no verdict obtained wholly or partly on the testimony of any witne can be evidence for or against that witne in any other proceeding; and therefore he cannot be objected to on that ground. Some exceptions also to this rule of exclusion arise from the nece ity of the case: upon this principle the testimony of the servants of tradesmen, to prove the delivery of goods and payment of money, is daily admitted. The objection to competency is removable in some cases by a release of all liability to the witne . But it is now provided, by 3 & 4 W. 4. c. 42., that whenever a witne is objected to as incompetent on the ground that the verdict would be evidence tor or against him, he shall neverthele be heard; and his name being entered on the back of the record, the verdict so obtained shall never be used as such evidence. All testimony must be given under a judicial oath, with an exception only in favour of Quakers, wliich is now extended to criminal as well as civil cases. Evidence, immediate and mediate Besides the exclusion of witne es on the score of competency, large cla es of evidence are inadmi ible. Admi ible evidence must be, in general, immediate; that is, it must convey the actual knowledge or belief of the witne . This rule excludes, as a general proposition, all hearsay; that is, all narration of the declarations made by others to the witne . There are, however, several cla es of mediate testimony which are admi ible. Such are, general reputation in certain cases; and declarations, made by a party to the suit, which contain admi ions contrary to his own interest. So, in various cases, letters or entries made in books are admi ible, where they contain similar admi ions. Upon the same principle, the confe ion of a prisoner is evidence (if unextortctl by fear or hope) in a criminal case. Depositions of a witne now deceased, but who had formerly given evidence on EVIDENCE. the same dispute, are admi ible. Evidence may also be considered as divided into original or best, and secondary evidence. For instance, the reading of a document is better evidence of its contents than statements, either written or oral, respecting them. It is a general rule, that all secondary evidence is excluded, if better evidence (that is, evidence of a cla which the law recognizes as better) happen to be attainable. Other exclusive rules rest on grounds of public policy. Thus husband and wife are excluded from giving testimony for or against each other. Communications between an attorney and his client, and, for particular purposes, some other private communications between parties, are in their nature privileged, and cannot be given in evidence. Examination of Witne es. — A witne , on being admitted in court, is first subjected to the examination of the party in whose behalf he is called, which is termed the examination in chief; and the principal rule to be observed by the party examining is, that leading questions are not to be asked. What are leading questions, it is not always easy to ascertain; but questions to which the answer yes or no would be conclusive of the i ue fall undoubtedly within this designation. All questions which suggest an answer may be considered, in one sense, as leading questions; but they are not all equally objectionable. The witne is then cro -examined by the opposite party. The object of cro -examination is twofold: to weaken the evidence given by the witne as to the fact in question, either by eliciting contradictions or new explanatory facts; or, secondly, to invalidate the general credit of the witne . In tne latter case, it is a general rule, that a witne may refuse to answer any question, if his answer will expose him to criminal liability; and this, whether immediately or by collateral inference. Whether he can refuse to answer a question tending to disgrace hin\ without involving him in danger, is a point which has been frequently debated, but which the general practice of our courts seems to settle in the affirmative. The credit of a witne may likewise be impeached by the general evidence of others as to his character. But in this case no evidence can be given of particular facts which militate against his general credit; as this would be in contravention of another rule, that collateral i ues — questions of fact unconnected with the subject of dispute — shall not be raised during the course of a trial. Re-examination of a witne by the party who first examined him, must be directed to such new points only as have been raised by the cro -examination. If it is wished to put a question not connected with these points, the proper course is for the counsel to apply to the court to put the question for him. Evidence, Documentary. — Written instruments, considered as evidence in a court of justice, have been divided into public judicial documents; public non -judicial; private documents; and mixed, which are partly public and partly private. The contents of the record of a court of justice are properly proved by inspection of the record itself; otherwise by exemplification, or by sworn copy. A copy of a record, under the seal of the Court of Chancery, or of one of the King's other courts, is an exemplification; as are also the records cf some inferior tribunals. Office copies are evidence, wherever the law has entrusted a particular officer with the making of them. Sworn copies are copies proved on oath to have been examined with the original. All public documents, whether judicial or non-judicial, which cannot be removed, can be and usually are proved in this manner. But before it can be read, it must be proved that the original came out of the hands of the officer of the court, or from the proper place of deposit. A copy of a copy is in no case admi ible. Mixed documents are of a nature partly public and partly private; such as court-rolls of manors, and corporation books. Examined copies of these are evidence. The books of public companies — as, for instance, the East India Company — are evidence in questions between parties interested in them. Private writings are of two sorts: first, writings to which the person against whom they are otfered was party or privy; secondly, writings of third persons. All documents of the first cla are, in general, evidence against the party. And an admi ion under seal (as a deed or bond) is, in general, conclusive evidence against the obligor, or party binding himself; that is, he is estopped, or prevented, from offering to rebut it. A discu ion of the rules which govern the admi ibility of written instruments not under seal as evidence would occupy far too wide a field for the present purpose. Oral evidence can in no case be received as an equivalent or substitute for an instrument, where a writing is required by law; or to ^ve effect to such an instrument, if defective in any particular required by law; or to vary its terms, if it have been appointed, either by act of law or by comp.ict of the parties, as a memorial of the transaction between them. This rule proceeds on the general principle already adverted to, that where the best evi  [s. 437]