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given by his opponent is not the best that the case will admit of. Thus, where upon the trial of an appeal against an order of removal, the respondents proved by parol evidence the taking of a tenement in 1828, at a yearly rent exceeding 10l. by the husband of the pauper (who had since gone to America), and the occupying of and payment of rent for the same for two years; the appellants then proved by a witness, that the taking in question was by agreement in writing; and it was contended before the Court of King's Bench for the appellants, that as the respondents had not produced and proved the written agreement, the order of removal ought to be quashed: but the Court held, that as the objection appeared from the appellant's evidence only, and not from that of the respondents, it was for the appellants to produce and prove the agreement, if they intended to found any defence upon it; and the Court stated the rule to be, that if, after a party has proved a contract by parol, it appear from that party's witnesses, either upon examination or crossexamination, that the contract was in writing, he must then produce and prove it; but if this appear, not from the evidence of his witnesses, but from the witnesses called by the opposite party, then the latter must produce and prove the written agreement, if he would derive any advantage from it. R. v. Padstow, 4 B. & Adolph. 208.

See upon the whole of this subject, 1 Arch. Pl. & Ev. civ. act. 372-387.

3. Written Evidence.

And

Acts of Parliament.] Public Acts of Parliament are never proved, as all judges are bound judicially to take notice of them; and therefore where we see a copy of a public Act, printed by the King's Printer, used on a trial, we must consider it, not as evidence, but used merely to aid the judge's recollection. the same of all local Acts, containing a clause, either making them public Acts, or directing the judges to notice them judicially. But private Acts, not containing any such clause, must be proved as any other record, namely, by an examined copy of the enrolment. And the statutes of Ireland, previous to the Union, may be proved in the Courts in this country by the copies printed and published by the King's Printer. 41 G. 3, U. K., c. 90, s. 9.

Other Records.] The records of any of the King's Courts of Common Law at Westminster, may be proved by an examined copy. So, the record of an indictment at the assizes or sessions, may be proved by an examined copy; or the record itself may be produced. And for this purpose the record must be made up; for the indictment itself cannot be given in evidence. R. v. Smith et al. 8 B. & C. 341. R. v. Thring, Ry. & M. 171, 5

Car. & P. 507. A conviction before a magistrate is proved by an examined copy; see 5 Car. & P. 38. I Arch. P. A. 456. 2 Id. 70; or the conviction may be produced. And if it recite the information, such original copy will be evidence of that also. 5 Car. & P. 38.

Matters quasi of Record.] Entries in the Journals of the Houses of Lords and Commons, may be proved by examined copies. Cowp. 17. Doug. 594. Bill, answer, depositions, and decree in a court of equity, are also proved by examined copies. Gilb. Ev. 49, 50, 56. So, libel, answer, depositions and sentence in the Ecclesiastical Courts, are proved by examined copies. Gilb. Ev. 66, 67. And the same, as to proceedings in the Admiralty Court. Com. Dig. Evidence, C. 1. The proceedings in inferior courts not of record, such as the county court, court baron, or the like, are usually proved by producing the books in which they are entered, and proving them by the clerk of the court; or, it seems, they may be proved by examined copies. See Gilb. Ev. 74. 20. Com. Dig. Evidence, C. 1. As to the proof of proceedings in bankruptcy, see stat. 4 G. 4, c. 16, s. 96. 2 & 3 W. 4, c. 114, s. 5-9. And as to the proof of proceedings in the Insolvent Court, see stat. 7 G. 4, c. 57, s. 76.

Depositions of deceased Witnesses.] The depositions of a witness taken before a magistrate or coroner, in pursuance of stat. 7 G. 4, c. 64, s. 2, 3, 4, in the presence of the prisoner, so that the prisoner had an opportunity of cross-examining the witness if he thought fit, may be given in evidence against the prisoner after the witness's death. And where, upou an indictment for murder, it appeared that the prisoner had been brought before magistrates, for an assault upon the deceased, and for robbing a manufactory which the deceased had been employed to watch; the deceased upon that occasion was examined on oath before the magistrates, but the prisoner was not present until the examination was nearly closed, when the deceased was again sworn, the examination read over slowly in the presence and hearing of the prisoner, and the deceased said it was correct: this deposition was afterwards received upon the trial, and ten of the judges held that it was properly received. R. v. Charles Smith, R. & Ry. 339. 2 Stark, 208. But where an examination before magistrates is ex parte, and the party to be affected by it is not present, and has no opportunity of examining the witness, the deposition in such a case cannot be given in evidence against the party after the death of a witness. Therefore the examination of a pauper as to his settlement, cannot after his death be read in evidence against the appellants, on the trial of an appeal against an order for his removal; R. v. Ferry Frystone, 2 East, 54. R. v. Abergwilly, 2 East, 63; and the same, where the

pauper has absconded, R. v. Nuneham Courtney, 1 East, 373, or has become insane. R. v. Eriswell, 3 T. R. 707. There are two exceptions however to this, created by statute, namely, one with respect to soldiers, by the Mutiny Act, which makes their deposition as to their settlement evidence, although they are dead or absent from the kingdom; and the other, with respect to prisoners in any gaol or house of correction, &c. by stat. 59 G. 3, c. 12, s. 28, which makes their deposition evidence as to their settlement, so long as they shall continue in prison.

Other public Documents.] Inquisitions are proved by examined copies, or the originals may be produced. See 1 Arch. Pl. & Ev. civ. act. 408, 409. Registers of baptisms, marriages and burials, may be proved by the register itself, or an examined copy of it. Gilb. Ev. 72. Entries in corporation books, and in the books of public offices or companies, as the books of the Custom House, Bank, East India Company, South Sea Company, and the like, relating to matters public and general, may be proved by examined copies. 1 Str. 93. 307. 2 Id. 954. 1005. Hardw. 128. 2 Ld. Raym. 851. 2 Doug. 593, n. 3. Peake, 43. 4 Taunt. 787. The King's proclamations are proved by the production of the Gazette containing them. See 2 Campb. 44. 4 M. & S. 532. The Articles of War may be proved by the copy printed and published by the King's Printer. 5 T. R. 442, 446. See 4 B. & C. 304.

Deeds and other private written Instruments.] Deeds and all other written instruments of a private nature, must be proved by 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. Bull. 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 bonâ fide, serious and diligent inquiry he cannot be found in those cases the instrument may be proved, by proving the witness's handwriting. 1 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. 1 Arch. Pl. & Ev. civ. act. 423, 424. But it cannot be proved by comparing it with other writing of the party. Id. 424.

In appeals, all indentures of apprenticeship, leases, agreements, &c. tendered in evidence, must appear to be correctly stamped, otherwise they ought not to be received or read. In larceny also, if of bills of exchange, or other valuable security

requiring a stamp, or upon an indictment for obtaining it by false pretences, the bill, &c. must be duly stamped, otherwise it is not a valuable security within the meaning of 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. Yutes, Ry. & M. 170. Perhaps a distinction in this respect might be made between those instruments, which the commissioners of stamps 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 if the instrument were genuine it would require a stamp. R. v. Hawkswood, 2 T. R. 606.

4. Parol Evidence.

In all cases where a fact need not be proved by a record, deed, or other written evidence, (see ante, p. 138,) it may be proved by the parol testimony of witnesses. We shall now consider the doctrine of parol testimony, shortly, under the following heads.

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Who may be Witnesses] Quakers may now be witnesses in criminal cases, and may make an affirmation instead of taking an oath; 9 G. 4, c. 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 for a Quaker or Moravian, is thus: “I, A. B., being [one of the people called Quakers," or one of the persuasion of the people called Quakers," or "one of the United Brethren called Moravians," as the case may be,]" do solemnly, sincerely, and truly declare and affirm," &c. The affirmation of the Separatists is thus: "I, A. B., do, in the presence of Almighty Gol, 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," &c.

Jews may be witnesses, and are sworn upon the Old Testament, or rather upon the Five Books of Moses. So Turks, Moors, Gentoos, and in fact all persons who believe in a God, in a future state of rewards and punishments, and in the moral obligation of the oath he is about to take, may be witnesses, Bull. N. P. 292. 1 Arch. Pl. & Ev. civ. act. p. 440, each to be

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sworn in such form as he deems to be obligatory upon his conscience. But a person, who has no religious belief, which he deems binding upon his conscience to speak the truth upon oath, cannot be a witness. Bull. N. P. 292.

Infants of the age of fourteen may be witnesses; and under that age, if they appear to have competent discretion. 2 Hal. 278. 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.

Deaf and dumb persons may be witnesses, 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. Lunatics may be witnesses in their lucid intervals; Com. Dig. Testm. A. 1; idiots or insane persons cannot. Co. Lit. 6 b.

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. 17; but this 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 juror in that particular case, if the Court will permit him.

The prosecutor in criminal cases, (with a very few exceptions, which shall presently be mentioned,) may be a witness; even in cases of forgery, the person whose name is forged may now be a witness to sustain the prosecution. 9 G. 4, c. 32, s. 2. See 2 Arch. P. A. 238. 192. But where an offence is punishable upon indictment by fine only, and the fine or a part of it is given to the informer by statute, the informer cannot be a witness for the prosecution. See R. v. Blackmore, 1 Esp. 95. R. v. Cole, Id. 217. Also, upon an indictment for forcible entry on stat. 21 J. 1, c. 15, or 8 H. 6, c. 9, s. 3, the tenant or person upon whom the forcible entry was made, cannot be a witness for the prosecution, for by these statutes he is entitled, upon conviction, to have restitution; R. v. Williams, 9 B. & C. 549; but upon an indictment for forcible entry at common law, it would be otherwise. Id.

No inhabitant or person rated or liable to be rated to any rates or cesses of any district, parish, township or hamlet, or wholly or in part maintained or supported thereby, or executing or holding any office thereof or therein, shall by reason thereof be deemed an incompetent witness for or against such district, parish, &c. in any matter relating "to such rates or cesses; or to the boundary between such district, parish, township or hamlet, and any adjoining district, parish, township or hamlet; or to any order of removal to or from such district, parish, township or hamlet; or the settlement of any pauper in such district,

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