First, Of evidence gene rally, &c. it seems to be the better opinion that they ought to be answered, in order that the credit of the witness may be duly estimated. However, as observed by Mr. Starkie, the decision of this question is of less practical importance 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. Cross examina tion as to colla teral facts. It seems clear that a witness cannot be examined to a distinct collateral fact, for the purpose of impeaching his testimony, by contradicting him, nor 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 quesmuch 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 cross-examination. This may also be effected, by contradicting him by opposite testimony, he having been first distinctly interrogated upon the precise question in cross-examination. But, it must be recollected, 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, except that where he is under the necessity of calling a witness for the purpose of satisfying the formal proof, which the law requires, as where he is 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). 2. Of Documentary Evidence. tions on cross examination. Credit of a witpeached. ness how im allowed to discredit his own witness. A party not 2. Of documen 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 evidence of a public statute, a private act is proved by a printed copy which (a) 1 Stark. Evid. 144, Harris v. Tip pett, 2 Camp. 638. (b) 1 Stark. Evid. 134. (c) 1 Stark. Evid. 147. (d) 1 Stark. Evid. 150. Instruments of a public nature. First, Of evidence generally, &c. 2. Of documentary evidence. Parish books, registers, &c., evidence. Judgments in rem 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 proceeding. 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 (b). 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 (c). 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 baptism 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 churchwardens 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. But 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 (a) 1 Stark. Evid. 163. (b) Ibid. 165. (c) Ibid. 167. (d) Ibid. 176. First, Of evidence gene rally, &c. Temporal Court, at all events it is not conclusive; for the jactitation suit is founded merely on a supposed defamation, and the question of marriage, so far as it is involved in it, is merely collateral, and the sentence, therefore, is neither direct nor conclusive, as to any marriage; it amounts to no more than to a negative of any matrimonial contract, as far as yet appears, leaving open tary evidence. to new proofs of the same or any other, marriage in another cause. Court rolls, corporation books, and perhaps books of some private companies, may be included in this class,-are partly of a public and partly of a private nature. 2. Of documen Court rolls and customaries of manors, are public instruments of evidence Documents of a as between the lord and the tenant, for by them the inheritance of every mixed public and private nature. tenant is preserved, and they are the rolls of the Manor Court, which was formerly a court of justice. They are evidence of customary rights, within the manor, or which have been handed down from one generation to another. Hence, entries upon the court rolls are evidence to prove the mode of descent, although no instances of persons having taken, according to that mode, be proved; so they are to prove that proclamations have been made; a customary handed down from steward to steward with the court rolls, is also evidence of the mode of descent, although not signed by any one (a). The examined copy of a court roll is admissible in evidence. So a copy under the hand of the steward is good evidence to prove the copyholder's estate (b). The books of a corporation are evidence, as between the members or against them, but they are not evidence for the corporation against a stranger, and the same rule holds as to the books of public companies, as the East India Company, the Bank of England, &c. Corporation books are proved, by shewing that they have been publicly kept as such, and that the entries were made by the proper officer, or by one who acts for him, pro tempore, during his illness or necessary absence. And the seal of a public corporate body, need not be proved by a person who saw it affixed to the particular instrument, but it suffices to shew that it is the seal of the corporation (c). If the document be in the custody or power of the opposite party, a notice Proof of deeds to produce it must be served; or, if in the hands of a third person, he must and writings. be served with a subpoena duces tecum, upon which he must be ready to produce it, if ordered by the Court. And it is only where the production of it would have a tendency to subject him to a criminal charge, penalty, or forfeiture, or would be prejudicial to his lien, that the Court will excuse the non-production (d). Wherever a deed, or other instrument, is subscribed by an attesting witness, such witness must be called to prove the execution, and it has been expressly held that the subscribing witness must be produced in settlement cases, as well as others, 4 M. § §. 350. But where the attesting witness is dead, or blind, or insane, or infamous, or has become interested after the execution of the deed, or out of the kingdom, or cannot be found after diligent enquiry, evidence of the witness's hand-writing is admissible (e). Extreme illness will not dispense with his attendance, 3 Campb. 457. tion when dis. pensed with. Where a deed is thirty years old it proves itself, and no evidence of its Proof of execu execution is necessary, and so with regard to receipts, wills, and other old writings (f). Where an old deed or writing is offered in evidence, without proof of execution, some account ought to be given of its custody, or it should be shown that possession has accompanied it. (9) But it has been held sufficient to produce a certificate of settlement thirty years old, without showing that it had been kept in the parish chest. (h) Even if it appear that the attesting witness is alive and capable of being produced, it seems First, Of evidence generally, &c. 2. Of documentary evidence. Proof of handwriting. unnecessary to call him, where the deed is thirty years old (a). If there is any rasure or interlineation in an old deed, it ought to be proved in the regular manner by the witness, if living, or by proof of his handwriting and that of the party if dead (b). Where a party producing a deed, under a notice to produce, claims a beneficial interest under it, it will not be necessary for the party calling for the deed, to prove the execution of it (c). But where the party producing the deed does not claim an interest under it, the party calling for it must prove it in the regular manner (d). Where the plaintiff declared on a deed which he averred to be in the possession of the defendant, who pleaded non est factum, and at the trial the deed was proved to be in the hands of the defendant, who had been served with notice to produce, it was held, that on the non-production of the deed, the plaintiff might give parol evidence of the contents, without calling the subscribing witness who was in court (e). So where the plaintiff declared on a lost bond, and a witness stated that there were subscribing witnesses' names to the bond, but that he did not know the names, it was ruled, by Lord Kenyon, that the plaintiff might recover, without calling either of the attesting witnesses (ƒ). The hand-writing of a party may be proved by a witness who has seen him write; and if a witness states, that he has only seen him write once, but thinks the signature is his writing, it is evidence to go to the jury, though he says that he can form no belief on the subject (g). But where a witness stated, that he had merely seen the party subscribe his name to another instrument, to which he was attesting witness, and was unable to form an opinion respecting the hand-writing, without examining such other instrument, it was held insufficient (h). However, a witness who has seen a party write, but has forgotten the character of the hand-writing, may refresh his memory by referring to the instrument which he saw the party write. It was held, by Lord Ellenborough, that the full signature of an acceptor was not sufficiently proved by a witness who had seen him write his name but once before, when he used only the initial of his Christian name (i). If a witness proves that he has been in the habit of corresponding with the party in question, and acting in the course of business, or in other transactions with the party, upon such correspondence, and that the document, er writing produced, is in the same hand-writing, this is sufficient proof of the hand-writing, although the witness has never seen the party write; for when letters are sent, directed to a particular person, and on particular business, and an answer is received in due course, a fair inference arises, that the answer was sent by the person whose hand-writing it purports to be (k). And a witness, who has received letters from the party in answer to letters written to him by the witness, may prove the hand-writing, though the witness has never done any act in consequence of the receipt of such letters (1). A comparison of hand-writings, without any other knowledge of the character of the hand-writing, furnishes no evidence, though a witness, who has seen a party write, may refer to that writing to strengthen his recollection; but not merely for the purpose of comparison (m). And in the case of ancient documents, where it is impossible for a witness to swear that he has seen the party write, it is sufficient if the witness has acquired his knowledge of the hand-writing, by the inspection of other ancient writings, bearing the same signature, and preserved as authentic documents (n). But where there is no (h) Filliter v. Minchin, Manning's Index, 131. (i) Powell v. Ford, 2 Stark. 164. (k) Cary v. Pitt, Peake Ev. App. 85; Harrington v. Fry, 1 Ry. & Moo. 90. (1) Doe v. Wallinger, Manning's Index, 131. (m) Burr v. Harper, Holt, Rep. 420. (n) B. N. P. 236; Taylor v. Cooke, 8 Price, 652. proof, or presumption, that the document with which the instrument produced has been compared, was written by the party whose hand-writing is to be proved, the evidence of the witness who compared them is inadmissible (a). First, Of evidence generally, &c. 2. Of documen The mode of proving the due execution of a will (b), is, in some respects, tary evidence. more strict and particular than that by which the validity of ordinary deeds are established, it is therefore reserved to be stated last, under the head of documentary evidence. To prove a devise of lands, the will itself must be produced: an exempli- Proof of wills. fication, or probate, of the will is not evidence of a devise of realty (c). ` If the will is lost, the register book, or ledger book (d), or an examined copy; or if there be no such copy, paroi evidence may be received as secondary evidence of its contents, but not the probate (e). It is sufficient to call one witness, if he can speak to all the requisites of Witness to wills. attestation, to prove a will in a Court of Law (f). What those requisites are, will appear by the statutes against frauds, and the decisions upon the subject. by the devisor. The statute of frauds, 29 C. II. & III. s. 5, requires that all devises and Signing the will bequests of lands, or tenements, shall be in writing, and signed by the party so devising the same, or by some other person in his presence, and by his express directions, and shall be attested and subscribed in the presence of the devisor, by three or four credible witnesses, or else shall be utterly void, and of none effect. Notwithstanding some earlier cases to the contrary, it seems to be now the established rule, that sealing, without signing, is not a sufficient execution within the statute (g). It is sufficient if the testator sign his name at the beginning, or side, of a will, for the statute does not require him to subscribe it (h). If the will is written on several sheets, and the testator signs some, and intends to sign the rest, but does not, this is not a sufficient execution (i); but where a will, written on three sides of a sheet of paper, concluded by stating that the testator had signed his name to the first two sides, and had put his hand and seal to the last, and, in fact, he had put his hand and seal to the last, but had omitted to sign the two other sides, the execution was held good; the signing of the last sheet shewing that the former intention had been abandoned (k). Where the testator is blind, it is not necessary to read over the will in the presence of the attesting witnesses, previously to execution (1). how made. The statute does not direct that the witnesses shall see the testator sign, The attestation, and, therefore, it is sufficient if the testator acknowledge to the witnesses, either separately, or all together, that the will, or the hand-writing, is his (m). If the witnesses set their mark to the will, it is a sufficient attestation (n), and they may attest it several times; but in that case, one witness alone will not be able to prove the due execution of the will. If the will is contained in several sheets, the whole should be in the room at the time of the attestation; and whether it was so, or not, is a question for the jury (o). By the statute of frauds, the witnesses must attest and subscribe the will in the presence of the testator; but it is sufficient if the testator was in such a position that he might see the witnesses attest, as where he was in one room, and the witnesses in another, where he might have seen them through a broken (a) Randolph v. Gordon, 5 Price, 312. (b) See the full notes Chitty's Col. Stat. tit. Wills, 1125,6, in notes. (c) B. N. P. 246; Comb. 46. (d) St. Legar v. Adams, 1 Lord Raymond, 731; B. N. P. 246; 1 Phill. Ev. 478. (e) Doe v. Calvert, 2 Camp. 389. (f) B. N. P. 264; Longford v. Eyre, 1 P. Wms. 741. (g) Smith v. Evans, 1 Wils. 313; Grayson v. Atkinson, 2 Ves. 459; B. N. P. 263. (h) Hillan v. King, 3 Lev. 86, 9 Ves. 248. (i) Right v. Price, Dougl. 241. (n) Harrison v. Harrison, 8 Ves. 185. |