« PreviousContinue »
VII. Of Evidence in Settlement Cases.(a)
It will be convenient to divide the subject as follows: (b)
1. By Birth.
First, Of evidence gene
(First)-Of Evidence Generally, applicable to any Case under
1. Of oral testimony. Competency of witnesses.
1. Of Oral Testimony. The mode of obtaining the attendance of witnesses is well known, and it is only their use, as instruments of evidence, when they are properly in court, that it is proposed now to consider. The rule of law, that the best evidence must be produced, in all cases, as applied to oral testimony, admits of this qualification, viz., that he, who is best informed of any fact, is not always allowed to be examined on the subject. The law requires a mental and a moral fitness for the duty of giving evidence, of one or other of which qualities such individual may be destitute, and must, therefore, be rejected.
(a) It may be objected to the first part as this volume is frequently taken sepaof this chapter, relating to evidence in rately to the sessions. The second digeneral, that the introduction of the vision of the chapter, relating to evidence matter is swelling the work unneces- of settlement in particular cases is abso. sarily, especially as the chapter on evi- lutely necessary. dence, in the second volume, is now (6) As to Evidence in general, see rendered so full and complete. But it ante, 2nd vol. tit. Evidence ; as is hoped, that the few pages here occu- the evidence on appeals against orders pied will not be found useless, as they of removal, see ante, 705 to 790. contain, interspersed, some cases par. (c) See division of these subjects, ticularly relating to the poor laws; and ante, 273.
to 1. Of oral testi. mony.
When the objection arises from interest, it is usually taken upon the wit- First, Of ness's being sworn in chief; he may then be examined, generally, by the evidence genecounsel for the opposite party, as to his interest. Upon such examination, rally, 8c. he may be asked as to the contents of a particular document, without its being produced, and without notice given to the other party to produce it, for the party objecting to the witness could not know before-hand, whether the when incompewitness would be called or not. So the witness may discharge himself tent on account generally on the voire dire, without strict documentary proof. Thus a wit- of interest. ness, in a settlement case, having admitted that he had rateable property in the township, which was primâ facie a disqualification, was allowed to prove, on the voire dire, that he was not actually rated (a).
But objections of this kind are no longer of any avail, in settlement cases, 54 Geo 3, c. 170, it having been provided, by the 54 Geo. III. c. 170, s. 9, “ That no inhabit- $ 9, rated inha. ant, or person rated, or liable to be rated, to any rates or cesses of any district, officers declarel parish, township, or hamlet, or wholly or in part maintained, or supported to be competent. thereby, or executing or holding any office thereof or therein, shall, on such account, be deemed an incompetent witness, for or against such district, parish, &c., in any matter relating to such rates or cesses, or relating to any order of removal, or the settlement of any pauper, or touching any bastards, chargeable, or likely to become chargeable to such district, parish, township, or hamlet, or the recovery of any sum or sums for the charges or maintehance of such bastards, or the election or appointment of any officer or officers, or the allowance of the accounts of any officer or officers of any such district, parish, township, or hamlet; any law, &c., notwithstanding." So that in parish appeals, or other proceedings relating to parish matters, all objections to the competency of any witness, on the score of interest, or by executing any office, are removed.
[See the decisions on this act in Meredith v. Gilpin, 6 Price, 146, (ante, 149 :) and see also 1 B. f A. 87; 2 Stark, R. 215; Rex v. Hayman, M. & M. 401; and Marsden v. Stansfield, 7 B. f. C. 815.]
In Slocomb v. St. John, 29th August, 1829, on an issue to try whether the parish of Putney were to appoint both churchwardens, or whether the minister, by custom, is to appoint one, Sir J. A. Parke held, that a rated inhabitant of the parish is a competent witness to prove, that the parish select both church wardens, saying, that the principal object of the act, on the face of it, appears to relate to the poor, yet the words election or appointment of officers are very general. Tried at Croydon; Andrews, Brodrick, and Thessiger, for plaintiff'; and Gurney and Law for defendant.
But in O.xendon v. Palmer, 12th August, 1829, before Sir J. A. Parke, that learned judge, after consulting Gaselee, J., held, that an inhabitant of a parish is not, either at common law, or under this act, a competent witness to prove the right of surveyors of highways in a parish to take beach from sea shore in order to repair highways.
In Smith v. Ashcomb, in Hilary Term, 1820, a case reserved at the Devonshire sessions, it was held, that the statute restored the competency of an overseer, though his name appeared as a party to the appeal. The case is not yet reported, and the same point is now pending in Rex v. Aylesbear.
A pauper is a competent witness and may be examined as to the fact whether A pauper com· he had ever gained a settlement, or whether there was a reasonable ground petent to prove
to conclude that he had gained a settlement in the appellant parish by ment, and his apprenticeship or otherwise ; per Bayley, J., in Rex v. Yarwell, 9 B. &. C. muster vot. 895; and per Ashurst, J., in Rexv. Eriswell, 3 Term. Rep. 720; and i Nol. P. L. 488, a master was in general incompetent to prove or disprove his servant's settlement, but since the above statute he may. [See cases, post, 804, &c.]
Although the objection to the competency of a witness ought to be taken Time of objecting before the witness is examined in chief; yet, if it be discovered, at any sub- to competency of
(a) Rex v. Gisburn, 15 Eal, 57; Rer v. Killerby, 10 East, 292 ; 1 Stark.
on Evid. 120, E E E 2
1. Of oral testi.
First, Of sequent stage of the trial, that a witness is interested, his evidence may be evidence gene- struck out(a). But, if the objection be not taken before he is examined by rally, &c. the party calling him, he cannot be cross-examined as to the contents of a
written document not produced, which might have been done, had the objection been taken in the first instance(6).
The rule that a witness shall not be asked leading questions, has been thus interpreted; viz. that he shall not be asked those questions, or any questions, in a form which suggest to him the answer he is to make. But where the matter of immediate enquiry is merely introductory to that which is material, the rule does not apply, as it is convenient and proper to lead the mind of the witness directly to the subject, by at once asking his assent to those general facts which are necessary to be known, to a right understanding of the case, but have no influence upon the immediate issue to be determined (c). When the examination arrives at this latter point, a question which plainly discloses to the witness the answer which the party hopes to extract, is certainly objectionable. If, however, the witness evidently wishes to conceal the truth, or to favour the interest of the opposite party, the Court will allow leading questions to be put, as the mind of the witness is then already guarded, by such bias, against unfairly prejudicing the other side by bis answer. The same course is permitted, where a witness is called to contradict another as to the contents of a particular letter, which is lost, and he cannot recollect its contents, the particnlar passage may be suggested to him (d); or if he is called to prove a copartnership, consisting of a number of persons whose names he cannot remember, the names may be read to him,
and he may be asked if they were members of the firm (e). Examination as Generally speaking, a witness should only state such facts as are within to knowledge
his own personal knowledge, and not such as he believes, or is persuaded, are true, because he may have heard so. But his belief is evidence when founded upon facts which are within his own actual knowledge. On questions of identity, and of hand-writing, this is often the only species of evidence which can be given. And the opinion of professional persons, in matters of skill and judgment, is likewise admissible, the credit and value thereof being, in all cases, a question for those who have to determine upon
the evidence(f). Refreshing the If a memorandum of facts is produced, made by the witness, or by another
with his privity, either contemporaneously or subsequently, when the facts were fresh in his memory, he may look at it to refresh his memory; but if he has no knowledge or recollection of a fact, except that he perused it in a book or paper, such book or paper must be produced, for he is not, in such case, a witness to the fact, but only that such a writing exists, the contents of which the Court cannot take cognizance, unless it is produced (9).
Whatever tends to disclose the real situation of the witness in relation to tion of witnesses. the party who calls him, or to the matter in dispute, is a proper subject of
cross-examination. His credibility may also be assailed, in like manner, by questions affecting his character; and he cannot refuse to answer, because he may thereby subject himself to a civil liability, or charge (h). But he is not bound to answer, where by so doing, he may expose himself to any criminal proceeding or penal liability. Thus, upon an appeal against an order of bastardy, he is not bound to declare whether he is the father of a bastard child (i.) And it has been held, that a witness is not bound to answer any question which tends to render him infamous, or even to disgrace him, (3 Campb. 519), but the authorities are somewhat contradictory on this subject, and with respect to questions which merely tend to disgrace the witness, without his incurring any liability by his answer, even to a pecuniary penalty,
and as to belief.
(a) Turner v. Pearte, 1 T. R. 720. (f) 1 Stark. Evid, 127.
(g) Doe v. Perkins, 3 T. R. 749.
(h) See 46 Geo. III. c. 37. (d) Courteen v. Touse, 1 Camp. 43. (i) Rex v. St. Mary Nottingham, 13
(e) Acerro v. Petroni, i Stark. Rep. East, 58 11.
tion as to colla
tions on cross examination.
it seems to be the better opinion that they ought to be answered, in order First, Of that the credit of the witness may be duly estimated. However, as observed evidence geneby Mr. Starkie, the decision of this question is of less practical importance
rally, dc. than might have been expected, as it seems to be allowed, that such questions 1. Of oral testimay be put, and it is obviously of little consequence whether the witness mony. admits that which is insinuated against him, or refuses to answer the question. It is clear, that the refusal must make an unfavourable impression against him, since an honest man would be eager to deny the fact, and would not refuse to answer, merely because he had a strict legal right to refuse. But it is said that if a witness refuse to answer (a), counsel are not allowed to comment on the refusal.
It seems clear that a witness cannot be examined to a distinct collateral Cross examinafact, for the purpose of impeaching his testimony, by contradicting him, nor teral facts. in order to discredit his testimony. This rule does not exclude the contradiction of the witness, as to any facts immediately connected with the subject of enquiry. He may be asked, whether he has not used certain expressions of revenge or malice against the party, and in case of denial, he may be contradicted, to shew his motives and temper in the particular transaction (b).
Leading questions may be put to a witness upon cross-examination, with Leading ques. much more freedom than is allowed on an examination in chief. But those questions must not assume facts to have been proved, which have not been proved, or that particular answers have been given, contrary to the fact. The Court will also, in general, at the request of either party, order the witnesses to be examined apart from the hearing of the rest, in order to try the consistency of their account. It is discretionary with the Court to examine a witness, if he has remained in court after such an order given. See 6 Bingh. 683; Rex v. Colley & Sweet, M. & M. 329.
It will have been seen, that the credit of a witness may be impeached by Credit of a witcross-examination. This may also be effected, by contradicting him by peached. opposite testimony, he having been first distinctly interrogated upon the precise question in cross-examination. But, it must be recollecte:1, that this cannot be done with respect to any matters purely collateral. He may also be discredited by general evidence, that he is not to be believed upon his oath, and the witness who answers that he could not believe another witness on his oath, may be asked, upon cross-examination, as to the grounds upon which that belief is founded. But a party cannot discredit his own witness, or shew his incompetency,
A party not except that where he is under the necessity of calling a witness for the pur- credit his own pose of satisfying the formal proof, which the law requires, as where he is witness. attesting witness to a deed. And where a witness, by surprise, gives evidence against the party who called him, he will not be precluded from proving his case by other witnesses : but he is not at liberty to bring evidence to confirm the character of a witness, before the credit of that witness has been impeached (c). A witness may be re-examined upon all the topics upon which he has been cross-examined, but not as to any new fact unconnected with such cross-examination. But where it has been omitted to put a question as to any material fact, in the first instance, the course is to apply to the Court to do it, when the question will be put or not, according to the discretion of the Court (d).
allowed to dis.
2. Of documen
2. Of Documentary Evidence. Written instruments are either of a public, private, or mixed nature, partly tary evidence. public and partly private.
Acts of parliament belong to this class,—the printed statute-book is evi- Instruments of a dence of a public statute, it private act is proved by a printed copy
public nature. which
(a) 1 Stark. Evid. 144, Harris v. Tippett, 2 Camp. 638.
(b) 1 Stark. Evid. 134.
(c) 1 Stark. Evid. 147.
First, of eridence genea
2. Of documen. tary evidence.
Poi l books, roristers, &c., evidence.
has been examined with the parliament roll; though, in most cases, this is rendered unnecessary, by a clause in the act itself, which provides that a copy, printed by the King's printer, shall be evidence (a).
The journals of the house of lords, and of the house of commons, may be proved by examined copies.
A record may be proved by the mere production of it, or by a copy proved, on oath, to have been examined with the original ; and all public documents, which cannot be removed from one place to another, may be proved by copies, in like manner.
Copies of judicial proceedings, made by the known officers of the Court, are admissible in the same court, and such copies, sealed with the seal of the Court, are often, by the act, upon the subject to which they relate, made evidence in any other court or proceerling.
The Gazette is evidence of all acts of State, but not to prove particular facts between individuals, except as a medium to prove notices, as of bankruptcies, &c (6).
Ancient surveys, taken under public authority, are evidence—as Domesday Book—the Valor Beneficiorum-ancient terriers, that is, authorised surveys as to boundaries, ecclesiastical tenures, &c. But it is necessary, in all these cases, to prove that the documents come out of the proper custody, to verify their authenticity (e).
The instruments of a public nature, which more immediately relate to settlements, are parish books and registers. They are generally admissible. Such as the registers kept in churches of births, marriages, and burials. But the copy of a register of a foreign chapel, to prove a marriage abroad, or a baptisin in Guernsey, is not evidence. A church register is proved by an examined copy, but it is of course no proof of the identity of the parties (d).
By the 17 Geo. II. c. 38, s. 13, copies of all rates and assessments for the relief of the poor, are to be kept in a book by the church wardens and overseers of every parish, to be produced at the sessions when any appeal is to be heard.
By the 42 Geo. III. c. 46, they are also to keep a book, containing the names of all parish apprentices, and of the other particulars required by the act; the entries are to be signed by the justices, if they approve them at the time they assent to the indentures; and when the latter are proved to have been lost or destroyed, such register is to be deemed sufficient evidence of such indentures, and the other particulars specified in the register.
It is unnecessary for the purposes of this work, to consider in detail the effect of prior verdicts and judgments, as evidence in subsequent cases. Bat where the proceeding is, as it is technically called, in rem, the judgment, or decree, may be evidence against a party, who had nothing to do with the original suit, and has no privity with any of those former litigants. Evidence of this description may be adduced upon quessions of settlement by marriage, or by birth, where the legitimacy of the pauper is in question. The general rule is, that such a judgment, sentence, or decree, provided it be final in the Court in which it was pronounced, is evidence against all the world, unless it can be impeached on the ground of fraud or collusion. Thus it has been held, that the certificate of the ordinary (the judge of the Spiritual Court), before whom the question has been tried and determined, when returned to the judge of the Temporal Court, is conclusive upon all parties, upon questions of bastardy and marriage. So the grant of probate, or letters of administration, is conclusive evidence against all as to the title to personality, and to all rights incident to the character of an executor or administrator. So is the sentence in the Spiritual Court, of the nullity of marriage, when the decision in the Court itself is direct and final. (e) But sentence in a jactitation suit, as it seems, is not admissible evidence of marriage, in a
Juulgments in rem evidence.
(a) 1 Staik. Erid. 163.
(d) Ibid. 176.