the same." And it may be read before the grand jury, for the purpose of finding the bill, as well as before the petty jury at the trial. R. v. Clements, 20 Law J. 193 m.

The statutes relating to the examination of witnesses against a prisoner before a justice of the peace, previously in force, (1 & 2 Ph. & M. c. 13. 2 § 3 Ph. & M. c. 10, and 7 Geo. 4, c. 64,) contained no such enactment as the above; and yet it was determined in many cases, and well recognized as a rule of the common law, that in all cases of examinations of witnesses in cases of felony under those statutes, in the presence of the accused, and where he had the opportunity to crossexamine them, the deposition of a witness might be read against the accused upon his trial, if the witness were then dead, 2 Hawk. c. 46, s. 15. R. v. Smith, R. & Ry. 339. R. v. Osborne, 8 Car. & P. 113, or bedridden, and not likely to be ever able to attend at the assizes, R. v. Wilshaw, Car. & M. 145, or unable to travel, 2 Hawk. c. 46, s. 15, or had become insane, R. v. Marshall et al., Car. & M. 147, or was kept out of the way by or on behalf of the prisoner. 2 Hawk. c. 46, s. 15. R. v. Gutteridges et al., Car. § P. 471, per Parke, B. And it is probable, that although the cases of death and inability to travel from illness, alone, are expressly stated in this statute, as those in which the deposition of a witness may be read against a prisoner on his trial, it may be holden that such depositions may also be read in evidence, if the witness be bedridden, though otherwise not in ill health, or if he have become insane, or if he be kept out of the way by the prisoner or by some person on his behalf, at the time of the trial.

Where an objection was made to the admission of a deposition in evidence at the trial, because the caption of it stated no offence in law, it merely stating that the prisoner was charged with obtaining money and other valuable security for money from Mary Rowe, not stating by false pretences, &c. : the judges held that there was nothing in the objection; it was not necessary that there should be a heading or caption to the deposition, to render it admissible in evidence, it was sufficient that it appeared to relate to the charge on which the prisoner was tried. R. v. Langbridge, 2 Car. § K. 975.

Deeds and other private written instruments.] Deeds, bnd all other instruments of a private nature, must be proved ay the attesting witness, if there be one; or if there be no attesting witness, then by proof of the party's handwriting. Gilb. Ev. 99. 7 T. R. 266. Peake, 198. But where a deed or other writing is thirty years old, it proves itself. Bul. N. P. 255. Gilb. Ev. 94. So, if the attesting witness be dead, or have become insane or blind, or be abroad out of the reach of the process of the court, or if after a bona fide, serious,

and diligent inquiry he cannot be found in those cases the instrument may be proved, by proving the witness's handwriting. Arch. Pl. & Ev. Civ. Act. 421-423.

The handwriting may be proved by any person who has seen the party write, or who knows his handwriting from having corresponded with him, particularly if he have acted upon the letters he received from him. Arch. Pl. § Ev. Civ. Act. 423, 424. But it cannot be proved by comparing it with other writing of the party. Id. 424.

In larceny of bills of exchange or other valuable securities requiring a stamp, or upon an indictment for obtaining them by false pretences, if it appear in evidence that the bill was not duly stamped, the defendant will be acquitted; for in that case it is not a valuable security within stat. 7 & 8 G. 4, c. 29, s. 5. Therefore where a man was indicted for obtaining an order for the payment of 21., by false pretences, and the order appeared to be an unstamped cheque upon a banker, which from the manner in which it was drawn, required a stamp, the judges held that it was not a valuable security within the meaning of the Act. R. v. Yates, Ry. & M. 170. Perhaps a distinction in this respect might be made between those instruments, which the commissioners of land revenue may order to be stamped on payment of a penalty, and those which they have no authority to stamp after execution. But this point has not as yet been decided. In forgery, however, it is immaterial whether the forged instrument be stamped or not, although the instrument, if genuine, would require a stamp. R. v. Hawkswood. 2 T. R. 606.

SECTION III.

Parol Evidence.

In all cases where a fact need not be proved by a record or certificate, or by deed or other written evidence (see ante, p. 136), it may be proved by the parol testimony of witnesses. I shall now consider the doctrine of parol testimony, shortly, under the following heads:

1. Who may be Witnesses.

2. Number of Witnesses required.

3. Witnesses, how compelled to attend.

4. Witnesses' Expenses.

1. Who may be Witnesses.

Quakers, &c.] Quakers may now be witnesses in criminal cases, and may make an affirmation instead of an oath; 9 G. 4, e. 32; and indeed they may now make an affirmation instead

of an oath, in all cases. 3 & 4 W. 4, c. 49. So may Moravians. 9 G. 4, c. 32. 3 & 4 W. 4, c. 49. So may that class of dissenters called Separatists. 3 & 4 W. 4, c. 82.

The form of the affirmation of a Quaker or Moravian, is thus: "I, A. B., being one of the people called Quakers" [or 66 one of the persuasion of the people called Quakers," or 66 one of the United Brethren called Moravians," [as the case may be], "do solemnly, sincerely, and truly declare and affirm that," &c.

The affirmation of the Separatists is thus: "I, A. B. do, in the presence of Almighty God, solemnly, sincerely and truly affirm and declare that I am a member of the religious sect called Separatists, and that the taking of any oath is contrary to my religious belief, as well as essentially opposed to the tenets of that sect; and I do also, in the same solemn manner, affirm and declare that," &c.

Jews, Turks, &c.] Jews may be witnesses, and are sworn upon the Old Testament, or rather, upon the five books of Moses.

Turks and Mahomedans of all descriptions, may be witnesses, and are sworn upon the Koran.

So, Moors, Gentoos, Chinese, and in fact every person who believes in a God, and in a future state of rewards and punishments, and in the moral obligation of the oath he is about to take, may be witnesses, Bul. N. P. 292. Arch. Pl. & Ev. Civ. Act. 440, each to be sworn in such form as he deems obligatory upon his conscience. But a person who has no religious belief, which he deems binding on his conscience to speak the truth upon oath, cannot be a witness. Bul. N. P. 292.

Infants.] Infants of the age of fourteen may be witnesses; and under that age, if they appear to have competent discretion. 2 Hale, 273. Where they are very young, it is usual for the judge to question them as to their belief in God, their belief as to the punishment hereafter for swearing falsely, and the like, before he allows them to be sworn. See R. v. Williams, 7 Car. & P. 320.

Deaf and dumb persons.] Deaf and dumb persons may be witnesses, 2 Hawk. c. 46, s. 163, if any person can be found who can interpret their signs to the court and jury upon oath, R. v. Pollock, MS. 1814. R. v. Ruston, 1 Leach, 408, or if they can write and read writing, so that the questions and answers may be conveyed in writing.

Lunatics.] Lunatics may be witnesses in their lucid intervals; Com. Dig. Testm. A. 1; idiots or insane persons cannot. Co. Lit. 6 b. And when a lunatic is tendered as a wit

ness, it is for the judge to examine and ascertain whether he is of competent understanding to give evidence, and is aware of the nature and obligation of an oath; if satisfied that he is, the judge should allow him to be sworn and examined. R. v. Hill, 20 Law J. 222 m.

Judge or juror.] A judge may be a witness. And it is said that he may be so, even although he is the judge to try the cause; 2 Hawk. c. 46, s. 83; but this at present never occurs in practice. A juror, however, may be a witness, either for or against the prisoner, and must be sworn as such; Id.; but it is right that he should inform the court of his having evidence to give in the case, before he is sworn as a juror, and indeed to decline acting as a juror in the case, if the court will permit him.

Prosecutor.] The prosecutor in criminal cases may be, and generally is, a witness, either for the prosecution or for the defendant; even in cases of forgery, the person whose name is forged may now be a witness to sustain the prosecution. 9 G. 4, e. 32, s. 2. There were some cases formerly, in which the prosecutor was not allowed to be a witness, on account of the interest he had in the result of the prosecution;-in a prosecution for forcible entry on stat. 8 H. 6, c. 9, s. 3, or 21 Jac. 1, c. 15, he was not allowed to be a witness, for he was entitled to restitution if the defendant should be convicted; R. v. Williams, 9 B. & C. 549; or in cases where the punishment was by fine only, and the prosecutor was to have the whole or a part of it, he could not be a witness; see R. v. Blackmore, 1 Esp. 95. R. v. Cole, Id. 217;-but now, interest in the event of the prosecution, no longer renders a witness incompetent, by stat. 6 & 7 Vict. c. 85, s. 1, which I am now about to notice more fully.

Persons interested in the event.] By stat. 6 & 7 Vict. c. 85, s. 1, no person, offered as a witness, shall be excluded, by reason of incapacity from interest, from giving evidence, either in person or by deposition according to the practice of the court, on the trial of any issue joined, or of any matter or question or on any inquiry arising in any suit, action, or proceeding, civil or criminal, in any court, or before any judge, jury, sheriff, coroner, magistrate, officer or person having, by law or by the consent of the parties, authority to hear, receive, and examine evidence; but that every person so offered may and shall be admitted to give evidence on oath, or solemn affirmation in those cases wherein affirmation is by law receivable, notwithstanding that such persons may or shall have interest in the matter in question, or in the event of the trial of any issue, matter, question, or inquiry, or of the suit, action, or proceeding, in which he is offered as a witness. This

Act contained some exceptions, namely,—parties to the suit, action, or proceeding, named in the record,-lessor of plaintiff in ejectment,-tenant of the premises sought to be recovered in ejectment, the landlord or other person in whose right a defendant in replevin makes cognizance,-persons in whose immediate and individual behalf any action is brought or defended, either wholly or in part,-and the husband or wife of any such person; -all which exceptions, however, have recently been repealed by stat. 14 & 15 Vict. c. 99, s. 1.

By stat. 14 & 15 Vict. c. 99, s. 2, also, parties to suits, actions, or other proceedings in courts of justice, are made competent witnesses, and compellable to give evidence for or against each other. But, by sect. 3, nothing herein contained shall render any person, who, in any criminal proceeding is charged with the commission of any indictable offence, or any offence punishable on summary conviction, competent or compellable to give evidence for or against himself or herself, —or shall render any person compellable to answer any question tending to criminate himself or herself,-or shall in any criminal proceeding render any husband competent or compellable to give evidence for or against his wife, or any wife competent or compellable to give evidence for or against her husband. Vide infra.

Inhabitants.] The rated inhabitants of parishes were in many instances holden to be incompetent as witnesses for their parish, in any proceedings by or against it, on the ground of interest. But by stat. 54 G. 3, c. 170, s. 9, they were rendered competent in all matters relating to rates, orders of removal, settlements, and bastards; and by stat. 1 Ann, stat. 1, c. 18, s. 13, the inhabitants of a county, riding, or division, were rendered competent, in prosecutions for the non-repair of bridges, and the roads at the ends of them; and by stat. 27 G. 3, c. 29, s. 1, the inhabitants of a parish, township, or place were rendered competent witnesses to prove any offence to have been committed within their parish, &c., where the penalty was applicable to the poor of such parish, or otherwise in aid or exoneration of such parish, &c. But the stat. 6 & 7 Vict. c. 85, already mentioned (supra) has the effect of rendering inhabitants competent witnesses in all cases for their parish, &c., although by stat. 14 & 15 Vict. c. 99, s. 3 (supra), or at least by the equity of that statute, not competent or compellable to give evidence against it, where the inhabitants generally are indicted.

Husband and wife.] A wife cannot be examined as a witness for or against her husband, or a husband as a witness for or against his wife, Gilb. Ev. 133, 134. Bac. Abr. Evidence, A. 1. 2 Hawk. c. 46, s. 70, 71. See R. v. Sills et al., 1.