Clause relating to soldiers' set tlements for their wives and be summoned before him, in the town or place where such noncommissioned officer or soldier shall be quartered, in order to make oath of the place of his last legal settlement (which oath such justice is hereby empowered to administer); and such non- children when commissioned officer or private soldier as aforesaid is hereby di- quartered in rected to obey such summons, and to make oath accordingly; and England. such justice is hereby required to take the examination of such non-commissioned officer or soldier in writing, and to give an attested copy of the examination so taken before him to the person so examined, to be by him delivered to his commanding officer, in order to be produced when required; which said examination and such attested copy shall be at any time admitted in evidence, as to such last legal settlement, before any of his majesty's justices of the peace, or at any general or quarter sessions of the peace; although such non-commissioned officer or soldier be dead or absent from the kingdom: Provided always, and in case any non-commissioned officer or private soldier shall be again summoned to make oath as aforesaid, then on such examination, or such attested copy thereof being produced by him, or by any other person on his behalf, such non-commissioned officer or soldier shall not be obliged to take any other or further oath with regard to his legal settlement, but shall leave a copy of such examination, or a copy of such attested copy of examination, if required." În covenant on an indenture of apprenticeship, the plaintiff Subscribing proved that it was in the possession of the defendant, to whom he witness. 1 Burn, 779, gave a notice to produce it. The Court of C. P. held, that on 780. non-production he might be let into parol evidence of its contents, without calling the subscribing witness. Cook v. Tanswell, T. 58 G. 3. 2 Moore, C. P. 513. Burt v. Walker, T. 2 G. 4. 4 B. & A. 697. Action upon a bail bond, which was witnessed by the defendant's clerk (one Smith), who had been subpoenaed at the defendant's counting-house, and at the time of serving the subpoena said that he should not attend; evidence, however, was given that he did attend when the cause stood in the paper for trial the first time, which was six weeks before the actual trial. The trial had been before twice put off on account of Smith's absence, upon affidavits that he could not be found. Search was then made for him at the defendant's house, and in the neighbourhood; and it was likewise proved, that upon receiving information at the defendant's house that he was gone to Margate upon his master's business, the clerk of the plaintiff's attorney was sent thither to search for him. The affidavits stated, that he had been searched for up to the moment of trial, and could not be found. The cause was tried at the last sitting in this term before HOLROYD J., who admitted evidence of his hand-writing, but reserved the point. On motion for a new trial, the court held the evidence of his hand-writing was properly admitted. ABBOTT C. J. thought that due and diligent search was made, and with reference to the condition of the witness. death. The fact of a tenant for life not having been seen or heard of Presumed for fourteen years by a person residing near the estate, although not a member of his family, is prima facie evidence of the death 1 Burn, 780. of such tenant for life. Doe ex. dem. Lloyd v. Deakin, E. 2 G. 4. 4 B. & A. 433. See also Doe v. Jesson, 6 East, 80. 85. 1 Phill. Ev. 198. Entries in book Entries in the books of a steward of a manor of receipts of rent, of the stewards above thirty years old, and coming from the proper custody, are of a manor. 1 Burn, 783. Entries in public books. Hand-writing. admissible in evidence, without proving the hand-writing of the steward. The rule is not confined to deeds or wills, but extends to letters and other written documents coming from the proper custody. It is founded on the antiquity of the instrument, and the great difficulty, nay, impossibility of proving the hand-writing of the party after such a lapse of time. Wynn, Bart. v. Tyrwhitt, E. 2 G. 4. 4 B. & A. 376. See also R. v. Ryton, 5 T. R. 259. Dean and Chapter of Ely v. Fry v. Wood, Selw. N. P. 535. Goss v. Watlington, M.2 G. 4. 3 Brod. & Bing. 132. In an action against a surety, who had entered into a joint bond with his principal on his appointment to a public office, conditioned for payment of all monies received, and further that the principal should from time to time enter into certain books all monies by him received, the Court of C. P. held, that entries in such books by the principal were, after his death, evidence against the surety; but they gave no opinion whether such entries would have been evidence without such a special clause in the condition, or with it in his life-time. They held that receipts given by him were not evidence. Vide 2 Phil. Ev.552. Peake's Ev. Add. 5 edit. Gurney and others v. Langlands, H. 2 G. 4. 5 B. & A. 330. 2 Phil. Ev. Add. 554. Feigned issue, directed by the Court of K. B. to try whether the supposed signature of the plaintiff to a certo prove forgery. tain warrant of attorney was forged. At the trial, before WOOD B. at the summer assizes 1821, for Surry, an inspector of franks at the post office, who had never seen the party write, was called, and asked the following question:- From your knowledge of hand-writing, do you believe the hand-writing in question to be a genuine signature or an imitation ?" The question was objected to; and the cases of Revett v. Braham, and Rex v. Cator (1 Burn, 785.) were cited in support of the evidence, but Wood B. rejected the evidence. On motion for a new trial and cause shewn against it, ABBOTT C. J. said, I have long been of opinion, that evidence of this description, whether in strictness of law receivable or not, ought, if received, to have no great weight given to it. This was an issue directed by the court, in order to enable them to come to a satisfactory conclusion upon a rule pending before them. The other evidence in this case was of so cogent a description as to have produced a verdict satisfactory to the judge who tried the cause; and I can pronounce my judgment much more to my own satisfaction upon a verdict so found, than if this evidence had been admitted, and had produced a contrary verdict. For I think it much too loose to be the foundation of a judicial decision, either by judges or juries. The rule, therefore, for a new trial must be discharged. The other judges concurred. Form of swearing. 1 Burn, 790. The most correct and proper time for asking a witness whether the form in which the oath, as about to be administered to him, is one that will be binding upon his conscience, is before that oath is administered; but, inasmuch as it may occasionally happen that the oath will be administered in the usual form, before the attention of the court, or party, or counsel, is directed to it, that question may properly be afterwards asked. And if, in answer to such question, the witness shall declare in the affirmative, namely, that he does consider the oath which he has taken as binding upon his conscience, he cannot then be further asked, whether there be any other mode of swearing that would be more binding than that which has been used. If the witness says, he considers the oath as binding upon his conscience, he does in effect affirm, that, in taking that oath, he has called his God to witness that what he shall say will be the truth, and that he has imprecated the divine vengeance upon his head, if what he shall afterwards say is false; and, having done that, it is perfectly unnecessary and irrelevant to ask any further questions. Resolution of the Judges delivered by ABBOTT C. J. in the Proceedings on the Bill of Pains and Penalties against the Queen in the House of Lords, August 24, 1820. 2 Brod. & Bing. 284. 2 Hans. Parl. Deb. (N. S.) 913.915. 1 Phill. Ev. 24, 25. Hatfield v. Thorp, E. 3 G. 4. 5 B. & A. 589. 2 Phill. Ev. 555. Husband and In the case of a will, where one of the three attesting witnesses wife. was the husband of a devisee, who took the remainder in fee after 1 Burn, 787., et the death of the first devisee for life, and the question was, whether seq. the will was duly executed to pass real estates; the Court of K.B. determined that it was not duly executed. Vide stat. 54 G. 3. c. 170. § 9. 1 Burn, 793. Meredith v. Gilpin and others, M. 59 G. 3. 6 Price, 146. Inhabitants. 1 Phill. Ev. 127. In an action of trespass against the overseers of a township, where the principal point was, whether the lands in question were vested in the overseers under a local act of parliament, the Court of Exchequer determined that a rated inhabitant of the township was not an incompetent witness on the part of the defendants, although the land in question, if vested in the defendants, would be vested in trust for the township and in aid of the poor rates. 1 Burn, 797. The privilege of confidential communications is not confined to Attorneys. such as are made in relation to a cause. Where, therefore, an attorney who was consulted upon an assignment alleged to be fraudulent, but not employed in drawing it, was called, the Court of C. P. held that his evidence was properly rejected. Cromack v. Heathcote, 2 Brod. & Bing. 4. Contra. MS. Case, Wadsworth v. Hamshaw and another. Cor. Abbott C. J. 1st March, 1819. 1 Phill. Ev. 141. In Rex v. Teal, 11 East, 309. it was decided that a woman who Competency. had deposed on oath, at the instigation of the defendant, to the prosecutor's being the father of her bastard child, was a competent witness to prove that in truth the defendant was the father; and consequently to prove herself forsworn; nevertheless, the objection went strongly to her credit. See also Rands v. Thomas, T. 56 G. 3. 5 M. & S. 244. 1 Burn, 791. In the Case of the Ville de Varsovie and others, May 13th, 1817, Conviction of in the Admiralty Court, 2 Dods. Rep. 174., Sir WILLIAM SCOTT conspiracy. determined, on great consideration, that a conviction for a conspiracy to commit a fraud would not render an affidavit of the convict inadmissible. 1 Phill. Ev. 30. When a witness in support of a prosecution has been examined in chief, and has not been asked in cross-examination as to any declarations made by him, or acts done by him, to procure persons corruptly to give evidence in support of the prosecution, it is not competent to the party accused to examine witnesses in his de Witnesses Examination. statements. Contradictory statements. fence to prove such declarations or acts, without first calling back such witness examined in chief, to be examined or cross-examined as to the fact, whether he ever made such declarations or did such acts. See the opinions of the judges on the several questions proposed to them in the course of the proceedings against her late Majesty. 2 Brod. & Bing. 311. 3 Hans. Parl. Deb. (N. S.) 885. If a witness is called on the part of the plaintiff or prosecutor, and gives evidence against the defendant or accused; and if, after the cross-examination of such witness, the defendant's or accused's counsel discover that the witness so examined has corrupted or endeavoured to corrupt another person to give false testimony, in such cause, the counsel for the defendant or accused is not permitted to give evidence of such corrupt act of such witness without calling back such witness. S. C. 2 Brod. & Bing. 311. "The usual practice," said Lord C. J. ABBOTT, in delivering the opinion of the judges, "is this: if it be intended to bring the credit of a witness into question, by proof of any thing that he may have said or declared touching the cause, the witness is first asked upon cross-examination whether or no he has said or declared that which is intended to be proved." S. C. 2 Brod. & Bing. 313. See also 3 Hans. Parl. Deb. (N.S.) 887. Upon the question whether a witness being asked in cross-examination, if in conversation with C. D. he had not informed him "that he was to be one of the witnesses against the defendant," and, being re-examined, he stated what induced him to mention to C. D. what he had so told him; and the counsel further proposed to ask as to the whole conversation between him and C. D. so far only as related to his being one of the witnesses; the judges, eight against one (BEST J. diss.), were of opinion that the witness having fully and unambiguously explained his motive for so stating, the re-examination could not proceed to the extent sought, and a distinction was made between a conversation with a witness and a party to the suit or prosecution, where the declarations of the latter would be evidence against him, and a conversation with a third party would not. In the latter case, as the conversation of the witness could only become evidence, as it might affect his character and credit with respect to antecedent declarations, or the motives under which he made them, when once every thing which constituted the motive and inducement, and which might shew the party's meaning if the declarations were laid before the court; all beyond is irrelevant and incompetent. S. C. 2 Brod. & Bing. 294. 298. If a witness examined in chief on the part of the plaintiff, being asked whether he remembers a quarrel taking place between A. and B., answers that he has heard of a quarrel between them, but does not know the cause of it, and such witness is not asked, upon his cross-examination, whether he has or has not made a declaration stated in the question touching the cause of a quarrel, the counsel for the defendant cannot, in order to prove such witness's knowledge of the cause of the quarrel, afterwards examine a witness to prove that the other witness has made such a declaration to him touching the cause of such quarrel. S. C. 2 Brod. & Bing. 299. If a witness examined in chief on the part of the plaintiff, be ing asked whether he remembers a quarrel taking place between A. and B., answers that he does not remember it, and such witness is not asked on his cross-examination, whether he has or has not made a declaration stated in the question respecting such quarrel, the counsel for the defendant cannot, in order to prove that such witness must remember the quarrel, afterwards examine a witness to prove that the other witness has made such a declaration. S. C. 2 Brod. & Bing. 299. ation as to writ ten statements. In the same Case the judges decided that, upon cross-examin- Cross-examination, counsel cannot be allowed to represent, in the statement of a question, the contents of a letter, and to ask the witness whether the witness wrote a letter to any person with such contents, or contents to the like effect, unless the letter is first shewn to the witness, and the witness is asked whether he wrote such letter, and admits that he did write it. 2 Brod. & Bing. 286. A witness may be asked, upon cross-examination, upon shewing such witness only a part or one or more lines of a letter, and not the whole of it, whether he wrote such part or such one or more lines. But if the witness should not admit that he wrote such part or such one or more lines, the witness cannot be examined as to the effect of the contents of the letter, unless it is shewn to him, and he admits that he wrote it. S. C. 2 Brod. & Bing. 286. When a witness is cross-examined, and upon the production of a letter to the witness under cross-examination, the witness admits he wrote that letter, the witness cannot be examined whether he did or did not, in such letter, make statements such as the counsel shall, by questions addressed to the witness, enquire are or are not made therein; but the letter itself must be read, as the evidence to manifest that such statements are or are not contained therein. It is a rule of evidence, as old as any part of the common law of England, that the contents of a written instrument, if in existence, are to be proved by that instrument itself, and not by parol evidence. In the regular course of proceeding, the letter ought to be read after the counsel cross-examining shall have opened his case; but upon the request of such counsel, stating that it is expedient for the purpose of his more effectually, in the course of his cross-examination, propounding farther questions necessary for the interest of his client, such letter may be permitted to be read, subject to all the consequences of having it considered as part of his evidence. S. C. 2 Brod. & Bing. 288. 290. Et vide 1 Phill. Ev. 296, 297. If, on cross-examination, counsel enquire of a witness whether he has made representations of any particular nature, stating the nature of those representations, they must, in their enquiries, ask the witness first whether he made the representations by parol or in writing. S. C. 2 Brod. & Bing. 292. See also 1 Phil. Ev. 299. In the course of the same proceedings, a question was proposed Agency. to the judges as to the competency of proving, on the trial of a criminal prosecution, certain acts supposed to have been done by the agent of the prosecutor. On that occasion the judges determined that a defendant's counsel would not be allowed to prove in the defence that A. B., who had been employed as agent to procure evidence in support of the indictment, but who had not been examined as a witness, offered a bribe to some third person (who likewise had not been examined) to induce him to give evi |