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A

TREATISE

ON

THE LAW OF EVIDENCE.

WITH a view to assist the proceedings of Courts of Justice, on questions of a fact submitted to them for their decision, the law has laid down certain rules respecting the admissibility and effect of evidence, and the order in which it should be adduced. These rules constitute the Law of Evidence, and are the subject of the present Treatise; the object of which will be to ascertain the most convenient and surest means of arriving at truth, upon controverted questions of fact.

The evidence adduced before juries upon controverted questions of fact, is of two kinds, viz. 1st, Parol evidence, consisting of the viva voce examination of witnesses; and 2ndly, Written evidence. In treating of these species of evidence, the present volume will be divided into three parts. In the first part, it is proposed to consider the subject of proof by witnesses, and the principal rules of law relative to evidence in general; in the second part, to consider the subject of written evidence; and in the third part, it is proposed to consider certain branches of the law of evidence, chiefly of a practical nature, such as the means of enforcing the attendance of witnesses, the order in which the evidence should be adduced, the mode in which witnesses should be examined, bills of exceptions and demurrers to evidence.

B

Object of the dence, and

Law of Evi

plan of the

work.

2

PART THE FIRST.

CHAPTER I.

OF THE EXCLUSION OF EVIDENCE IN CERTAIN CASES, AND OF

INCOMPETENCY FROM DEFECT OF UNDERSTANDING.

Exclusion of THE parties to a suit are not permitted to adduce every

evidence in

general.

Exclusion of certain witnesses, and

reasons of exclusion.

description of evidence which, according to their own notions, may be supposed to elucidate the matter in dispute; if such a latitude were permitted, evidence might be often brought forward, which would lead rather to error than to truth, the attention of the jury might be diverted by the introduction of irrelevant or immaterial evidence, and the investigation might be extended to a most inconvenient length. In order to guard against these evils, the law interferes, in the first instance, by limiting and regulating the admissibility of evidence.

It is the province of the Judge presiding at the trial, to decide all questions on the admissibility of evidence; it will be for the Judge also to decide any preliminary question of fact, however intricate, the solution of which may be necessary for enabling him to determine the other question of admissibility. Upon this subject, it has been said by Mr. J. Buller, (1) that whether there is any evidence is a question for the Judge, but whether the evidence is sufficient is a question for the jury.

The law excludes various descriptions of evidence as improper to be submitted to the jury, and rejects altogether the testimony of certain persons, who are on this account termed incompetent witnesses. The rules affecting the competency of witnesses,

(1) Carpenter's Company v. Hayward, Doug. 375. B. N. P. 297, where the admissibility of evidence depends upon the decision of intri

cate questions of fact, judges occasionally, in practice, take the opinion of the jury upon them.

are chiefly founded on the consideration, that, in the generality of instances, the testimony of those witnesses, whom the law deems incompetent, would mislead juries; and it is obvious that the propriety of the exclusion in each particular case must be judged of, according to the constitution of the tribunal to which the evidence is submitted, and with reference to the mode of procedure before it. For this purpose, it is necessary to refer to the difference which exists between judicial investigations and the ordinary transactions of life, more especially with regard to the space of time allowed for decision, the temptations to deceive, the facilities of deception, and the consequences of deciding incorrectly. It is true, it may happen in some particular instances, that the legal tests of incompetency may affect very slightly, if at all, the credit of a person as a witness, in their application, while there may be other grounds of objection, though not strictly legal, which would cast the strongest suspicion upon his testimony. But it is to be remembered, the established rules for the exclusion of witnesses, do not profess to be infallible tests of credibility; and further, that the propriety of the rules of evidence must be judged of by their general tendency and their general practical result.

The cases, in which a witness is deemed incompetent to give any evidence at all, are fourfold: viz. 1st, When the witness labours under a defect of understanding. 2d, Where he refuses to take an oath, or from defect of religious principle does not acknowledge its sanction. 3rd, Where his character is infamous in consequence of a conviction of certain crimes. And 4thly, Where he is interested in the matter in issue.

Every person, not affected by any of these objections, will be competent to give evidence. "I find no rule less comprehensive than this," said Mr. Justice Lawrence, in the case of Jordaine v. Lashbrooke, "that all persons are admissible witnesses, who have the use of their reason, and such religious belief as to feel the obligation of an oath, who have not been convicted of any infamous crime, and who are not influenced by interest." We shall now proceed to examine separately the several causes of incompetency, which have been mentioned.

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