Written evidence has been divided into twe classes : the one, that which is pub lic, the other private ; and this first has been subdivided into matters of record, and others of an inferior nature. The memorials of the legislature, such as acts of parliament, and other proceedings of the two houses, where acting in a legisla tive character, and judgment of the King's superior courts of Justice, are de nominated records, and are so respected by the law, that no evidence whatsoever can be received in contradiction of them; but these are not permitted to be remov ed from place to place, to serve a private purpose, and are therefore proved by co pies of them, which, in the absence of the original, is the next best evidence.
A bill in Chancery has been admitted as slight evidence against the complainant ; and an answer is evidence against the defendant in equity himself, though not against others, and the whole may be read by the adverse party. Depositions in Chancery may be evidence at law, hut not against others, and regularly not if the witness be alive, except when taken in perpetuam rei memoriam, &c. Matter in law ought not to be giviin in evidence upon a trial, but only of fact.
Of persons competent to give evidence.
The King cannot be a witness under his sign manual, and a peer must be sworn to give evidence. A judge, or juror, may give evidence, the one going off the bench, and the other stating his evidence in open court. Members of corporations cannot be heard in a cause for the corpo ration. In actions against churchwar dens, &c. for money mispent, in indict ments for repair of roads, and penal ac tions for the benefit of the parish, parish ioners may be witnesses. Kinsmen are not to be objected to. Husband and wife are not received as witnesses for or against each other, and the bail cannot be a witness for his principal,on account of his direct interest in the event. One that has any benefit under a will, or deed, must re lease it, before he can psove it as a wit ness ; and by stat. 25 Geo. IL c. 6., any devise to a person who is witness to a will, or codicil, is void, and lie shall be received as a witness. A bare trustee, it is said, may prove a deed made to him self. In actions for penalties on usury, the borrower, after he has paid the mo ney, may be a witness to prove it, and in actions against the hundred, &c. the party is received as a witness in his own cause. Persons not ot'sound memo ry, attainted of prxmun re or convicted of felony, perjury, or other in famous crimes, are incompetent to be re ceived as witnesses ; but these are re stored to competency by the King's par don, and time witness shall not be asked any question to accuse himself; but it must be proved by producingthe convic tion ; but upon conviction of perjury, un der stat. 5 Eliz. c. 9, nothing but a rever
sal of judgment can restore a man to com petency.
Wills of land must be attested and sub scribed in the presence of the testator by three witnesses. ln general, the courts are inclined to favour the receiving of evi dence, and to consider objections as to in terest to go more to the credibility of the witness than to his competency.
A conviction of treason, of felony, and every species of infamous crime, as per jury, conspiracy, barratry, &c. prevent a man, when convicted of them, from being examined in a court of justice. When a man is convicted of any of the offences before mentioned, and judgment entered up, he is for ever after incompetent to give evidence, unless the stigma be re moved, which, in caseof a conviction of perjury, on the stat. of 5 Eliz. c. 9, can never be by any means short of a reversal of the judgment, for the statute has in this case made his incompetency part of his punishment ; but if a man be convict ed of perjury, or any other offence at the common law, and the King pardons him in particular, or grants a general pardon to all such convicts, this restores him to his credit, and the judgment no longer forms an objection to his testimo ny ; but an actual pardon must be shewn under the great seal, the warrant for it under the King's sign manual not being sufficient to found this objection to the testimony of a witness, the party, who intends to make it, should be pre pared with a copy of the judgment re gularly entered upon the verdict of con viction, for until such judgment be enter ed, the witness is notdeprived °fins legal privileges.
On the question, how far persons who have been defrauded of securities, or in jured by a pet:jury or other crime, can be witness in prosecuting for those of fences, the event of which might possibly exonerate them from the obligation they are charged to have entered into, or re store to them money which they have been obliged to pay ; the general princi ple now established is this, the question in a criminal prosecution on personal act being the same with that in a civil cause in which the witnesses are interested. Foes generally to the credit, unless the judgment, in the prosecution where they are witnesses, can be given in evidence in this cause wherein they are interested.. But though this is the general rule, an exception to it seems to be established in the case of forgery ; for many cases have been decided, that a person, whose hand writing has been forged to an in strument, whereby, if good, he would be charged with a sum of money, or one who has paid money, in consequence of such forgery, cannot be a witness on the in dictment.