The nature of the interest which dis qualified a witness was this either he must be directly and immediately bene fited by a result of the proceeding favour able to the party who called him, by ex onerating himself from a liability to costs, Cr to some process founded upon the deci sion of the cause in which he was called to. testify ; or he must be in such a situation as to be able to avail himself of the deci sion of the cause, by giving it in evidence in support of his own interest in some future litigation. With the view of re moving the practical difficulties arising from the rule as to a witness being able to avail himself of the decision of the cause, by giving it in evidence in support of his own interest in some future litiga tion, it was enacted by the stat. 3 & 4 Will. IV. c. 42, § 26, that "if any witness shall be objected to as incompetent, on the ground that the verdict or judgment in the action on which it shall be proposed to examine him would be admissible in evidence for or against him, such witness shall nevertheless be examined; but in that case a verdict or judgment in that action in favour of the party on whose behalf he shall have been examined, shall not be admissi ble in evidencefor him ; nor shall a verdict or judgment against the party on whose behalf he shall have been examined be admissible in evidence against him. By the 27th section, it was enacted that the name of every witness objected to as incompetent, on the ground that the ver dict or judgment in die cause in which he is examined would be admissible in evidence for or against him, shall, at this trial, be indorsed on the record on which the trial shall be had, together with the name of the party on whose behalf he was examined, and shall be afterwards en tered on the record of the judgment; such indorsement or entry to be sufficient evi dence that such witness was examined in any subsequent proceeding in which the verdict or judgment shall be offered in evidence. The act 6 & 7 Viet. c. 85, entitled An Act for improving the Law of Evidence,' enacts, " That no person offered as a witness shall hereafter be excluded by reason of incapacity from crime or interest from giving evidence, either in person or by deposition, accord ing 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 consent of parties, authority to hear, re ceive, 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, notwith standing that such person may or shall i have an interest in the matter in question, or in the event of the trial of any issue, matter, question, or injury, or of the suit. action, or proceeding in which he is offered as a witness, and notwithstanding that such person offered as a witness may have been previously convicted of any crime or offence : provided that this act shall not render competent any party to any suit, action, or proceeding indivi dually named in the record, or any lessor of the plaintiff, or tenant of premises sought to be recovered in ejectment, or the landlord or other person in whose right any defendant in replevin may make cognizance, or any person in whose imme diate and individual behalf any action may be brought or defended, either wholly or in part, or the husband or wife If such persons respectively ; provided also, that this act shall not repeal any provision in a certain act passed in the session of parliament holden in the seventh year of the reign of his late ma jesty and in the first year of the reign of her present majesty, intituled An Act for the amendment of the Laws with re spect to Wills :' provided that in courts of equity any defendant to any cause pending in any such court may be exa mined as a witness on the behalf of the plaintiff or of any co-defendant in any such cause, saving just exceptions ; and that any interest which such defendant so to be examined may have in the mat ters or any of the matters in question in the cause shall not be deemed a just ex ception to the testimony of such defendant, but shall only be considered as affecting or tending to affect the credit of such defendant as a witness." This act does not extend to Scotland.
II. The principal general rules by which the reception of oral evidence is regulated. —The first general rule (which applies equally to written as to oral testimony) is that all evidence produced must be relevant to the point at issue between the parties. The object of special pleading by the common law is to reduce contro versies between parties to particular issues, or propositions of fact affirmed by one and denied by the other, which are to be decided by the jury ; and the rule of evidence, that the proofs in the cause must be strictly confined to these issues, is founded upon obvious reasons of jus tice as well as convenience. Secondly, the affirmative of every issue is to be proved; that is. the party who asserts the
affirmative of a proposition must prove it. Thirdly, in proving a fact, the best evi dence of it must be given of which the nature of the thing is capable. Thus, a party is not permitted to prove the con tents of a deed by a copy, and still less by oral testimony, where the deed itself may be produced ; nor to prove the execution of a deed by any other person than a sub scribing witness, when he is living and producible. This rule is justified by the_ presumption which the offer of secondary evidence raises, that the production of the best evidence might have prejudiced the party in whose power it is, had he produced it. This rule is not, however, to be understood as requiring that all the evidence which can be given upon the fact in dispute should be produced ; as, for instance, if there are several attesting witnesses to a deed or other contract, it is not necessary that more than one should be called. Fourthly, hearsay testimony, which is a statement on oath of what an absent person has said respecting a fact to be proved, is, in general, excluded both on the ground that the witness to the actual fact does not declare his knowledge upon oath, and also because he is absent from the cross-examination of the party who is to be affected by what he states. To this rule, however, there are the fol lowing exceptions :—l. The declarations of persons who are in imminent danger and under the apprehension of immediate death, and who are therefore considered to be speaking under as powerful a reli gious sanction as the obligation of an oath ; 2. The declarations of deceased persons, and made against their interest ; as, for instance, charging themselves with the receipt of money on account of third persons, or acknowledging the payment of money due to themselves; 3. The de claration of deceased persons respecting rights of a public nature, such as the boundaries or general customs of a manor or district ; 4. The declarations of de ceased persons on questions of pedigree, or family occurrences of ancient date be fore the memory of living witnesses, such as births, deaths, or marriages. With re spect to the two last exceptions, however, evidence of declarations of this kind is inadmissible, if they have been made post 'item motam, that is, after the matter to which they relate has become the subject of litigation.
III. Written evidence consists of records, documents under seal, as charters and deeds, and writings not under seal.—Acts of par liament are records of the highest nature, being the memorials of the legislature ; but a distinction is made with respect to evidence between public and private statutes. A public statute requires no express proof in courts of justice, every one being presumed to know the law which he is bound to observe ; as to them. therefore, the citation of the statute itself is in all cases sufficient. But private acts of parliament are considered as documents relating to individuals, and must therefore be proved by copies compared with the original roll of parliament. A second and inferior species of records is the proceed ings of courts of justice, which are proved by exemplifications, sworn copies, and office copies. Exemplifications are tran scripts of the records of different courts, accredited by having the seals of such courts attached to them. Sworn copies are transcripts made by individuals who authenticate them upon oath, when they are produced in evidence. Office copies are copies certified to be true and accurate by an officer expressly intrusted for that purpose by an officer of the court to which the records belong. Charters and deeds are proved by the production of the instru ment and proof of the execution by the party to be charged with it ; but where the document is more than thirty years old, the execution need not be proved. The general rule is that the original deed must be produced, on the principle already alluded to of its being the best evidence ; but this is subject to the following excep tions :-1. Where it has been lost or destroyed by accident; 2. Where it is in the possession of a party to a suit against whom it is sought to be produced, and who refuses to produce it : in either of which cases the contents of the document may be proved by a oopy, or, if no copy exists, by oral testimony. Deeds attested must, in general, be proved by one at least of the subscribing witnesses; but if the at testing witnesses be dead, or are not to be found aft it a diligent search, or for any other reason incompetent to give evidence, the execution of the deed may be proved by proof of the hand-writing of the party. The proof of hand-writing, by the law of England, is peculiar. The testimony of persons skilled in hand-writing is wholly excluded, comparison of hands being in admissible for the purpose. The course is, that a witness acquainted with the writing of the individual in question, and who has seen him write, or who has had a written correspondence with him, shall testify to his belief that the document to be pro'ied is in his handwriting.