in the cuftody of the party they must be produced: for the law requires the best evidence of which the nature of the thing is capable, and the deed is much better evidence than a copy; for any rafure or interlineation which might vacate the deed, muft appear in the deed itself, tho not in the copy, and the offering of copy carries a prefumption that the deed is defective: and as deeds are in the cuftody of the party, they must be produced; for a inan cannot make his own fault in losing a deed, any part of his excufe. But where the party can prove that the deed is burned, loft or deftroyed, he will be excufed from producing it to the jury. If it can be proved that the deed was in fuch a houfe, and that the house was burned, or that the deed has been otherwife destroyed, without any neglect, or careleffness of the party, then the import of fuch deed may be given in evidence, and this will give reasonable grounds for the jury to find it. In this ftate the practice has been introduced that the plaintiff in fuch cafes declares on his contract--and alledges that the writing has been burned, deftroyed, or left, or gone into the hands of the defendant without any fault on his part. If the defendant prayers oyer, he muft deny the lofs: and if the plaintiff can prove it, he will not be bound to produce the writing, otherwife he muft, or be non-fuited. When the cafe comes on trial, he muft prove the lofs, or deftruction of the writing without fault, and then he will be admitted to give in evidence a copy, properly proved; or he may prove the contract, its contents and import, by parol, and this may be fufficient evidence for a jury to find a verdict. This is conformable to the English practice.

A copy of a deed which has been recorded, will be good evidence where the original is loft. • So a copy of a deed is good evidence where the original is in the hands of the defendant; but this copy must be proved by witneffes that compared it. An authenticated copy of a deed from the record, is always adiniffible evidence, and its weight must be left with the jury. All written contracts, whether fealed, or not, which are the ground of an action for the recovery of a debt or damages, must be laid with a profert, and must be produced on trial in evidence, unlefs burned, loft or destroyed, as has been mentioned. The law not only requires the production of deeds,

I Mod. 266. Sherwood vs. Hubbel, Sup. C. 1793.

deeds, and written contracts in evidence, but it alfo requires proof of their execution, excepting in cafes of deeds of more than thir ty years ftanding, which are called ancient, and which need not be proved, if they have been accompanied by poffeffion, unless there appear fome rafure or interlineation, when they ought to be proved.

But generally fpeaking, where the point is contefied, the execution, and delivery of all written contracts, are to be proved by parol teftimony. This may be proved either by the teflimony of fubfcribing witnees to the writing; if the fubfcribing witnefies are living, and can be had, they muft teftify, before an inferior evidence is admiffible-but if dead, or cannot be had, then the other proof may be introduced; and this may be by other witnefes who were prefent and faw the party fign the contract; by the confeffion and acknowledgment of the party, that he executed the writing, or by his hand-writing; for men are difting ifhed by their manner o writing, and the flape of their letters, as well as by their faces; and therefore where it can be proved by witneffes, that know the writing of the party, that the figning of the inftrument is his writing; or where it appears from a comparison with other writings, proved to be made by the party, this fhall be deemed fufficient evidence of the execution of the contract, unless it can be disproved by the party himself.

It is a general rule of law that all contracts reduced to writing are to be conftrued according to the intention of the parties apparent on the face of them, and that no parol teftimony can be adnitted to contradict, controul, or vary their operation.

As to rafures, and interlineations in written contracts, the general rules are, that if a deed be altered by a firanger, without confent of the obligee in a point not material, this does not avoid the deed; but it is otherwife if it be altered by a tranger in a point material; for the wineflès cannot prove it to be the act of the party that delivered it, when there is any material diderence from the fenfe of the contract; but if the contract does contain the fense of the partics, the witneffes may well fwear it to be their act; for an inmaterial alteration doth not charge the deed, and confequently the witnefes may atteft that very deed without danger of perjory.

*Cilb. L. Evid. 95 I il.reg. 11 Co. 25% 2 Stan. 116.

But if the deed be altered by the party himfelf in a point not material, it will avoid the deed; for when the party himself makes any alteration in his own deed, it difcharges the contract; for the contract hath the whole form from the words of the obligor; if the obligee undertakes to fupply it with new words, and to alter thofe the party has fixed upon, this is according to the rules of the law, which takes every man's own act moft ftrongly against himfelf, a new making, and framing of the contract, and for a man to contract with himself, is utterly void and ineffectual. Another reafon of this interpretation of the law, is to add a farction to deeds and written contracts, that perfens who have them in their cuflody, might not meddle with them, for fear of defroying their own fecurities. 6 If there be feveral covenants in a deed, and one of them be altered, it will destroy the whole deed. If there be blanks left in an obligation in places material, and filled up afterwards by the affent of the parties, yet the obligation is void; but in fuch cafes a redeliv ery would cure the dereft, d But if any immaterial part of the contract be added after delivery, by the affent of the parties,, it will not avoid the deed, for it is in effect the fame contract.

II. Of unwritten Evidence. Unwritten or parol evidence is, where the witneflès appear in court perfonally, and teftify orally. In difcuffing this fubject, I fhall confider,

1. Who may be witneffes. 2. Who may not be witnesses. 3. The inftances in which a party may telify in his own cause. 4. The number of witnefies required by law. 5. Prefumptive proof. 6. Hearlay Evidence. 7. The general rules of Evidence. 8. The procefs compelling the appearance of Witnelles. 9. Depofitions. 10. Demurrer to Evidence,

1. Who may be witneffes. All perfons may be witnefes, (not hereafter particularly excluded) who have fufficient difcretion, and may be prefumed to have a juft fenfe of the nature of an oath, and the obligation it lys them under to fpeak the whole truth. There is no precife age fixed at which infants may teftify. This mut depend upon the diferetion and capacity of an infant, when offered as a witness. Where they are fo young as to render it

doubtful

* 11 Co. 27.

luid. 28.

2 Rol. Abr. 89.

@ Vent. 185.

doubtful, the court may examine them refpecting the nature and obligation of an oath, and if they are fatisfied that they poflefs fo much difcretion and understanding that they would be liable to be punished for perjury in cafe of falfe-fwearing, they may be admit ted as witneffes. Infants under the age of nine years have been allowed to be witnefits.

• All perfons who believe in the existence of a God, let their religion be what it will, may be admitted to be witneflès. An bath is a folemn appeal to the Supreme Being, that he who takes it will fpeak the truth, and an imprecation of his vengeance, if he fwears falfe. The ufual form of our oath is grounded on no particular religion. If then perfons of any other religion befides thè christian, will take the oath in the common form, it might be allowed but the general rule is, that in all cases aliens fhall be allowed to take the oath in the moft folemn form, according to the laws and religion of the country where they belong. In England in early times, infidels and Jews were not allowed to be witnesses, but the liberal spirit of modern times has exploded this principle, b and Mahometans have been allowed to be fworn on the alcoran, and Gentoos, according to the most folemn form practised in their country.

:

In actions of trefpafs against feveral defendants, the plaintiff may after iffue is clofed, ftrike out any of them, for the purpose of improving them as witnefles. So where trefpafs is brought against several, and on the trial there is no evidence against fome of them, thofe against whom there is no evidence, fhall be fworn and allowed to teftify notwithstanding their being joined in the fuit: for if the plaintiff arbitrarily makes a perfon defendant, to prevent him from teftifying, he fhall not prevail by fuch an artifice for if this were allowed, the plaintiff might turn all the witneffes into defendants and prove what he pleafed without conteft: and in fuch cafe, the defendant admitted to be a witnefs, does not fwear in his own justification, but in the juftification of another with whom he is joined in the action unneccliarily. But this rule must be understood where there is no manner of evidence against the defendant offered as a witnefs; for if there be evidence against one, tho not enough

ΤΟ

• 1 Atkyns, 19. & 2 Strange 1104. © Gilb. L. D. 134. – ₫ 15:4.

4

to convict him in the opinion of the court, yet fuch perfon can be no witness for the other, becaufe his guilt, or innocence must wait the event of a verdict, for the jury are the judges of the fact and not the court, and the jury from their own knowledge may have farther light in the fact than what they have from the testimony in court. A judge may be a witness and fo may a juror; but then at juror must be called upon to give his evidence in open court, and may not be examined privately by his companions, and if he is, this will be good caufe to fet afide the verdict upon a motion in arreft; but if he gives his opinion founded on the character of the parties or witneffes it is otherwise.

2. Who may not be witneffes. All perfons are excluded from teftifying who want difcernment, who are infamous, who are in-.. terested, and attornies who are intrufted with the fecrets of their clients.

I. Perfons excluded for want of difcrenment, are infants under the age of difcretion, idiots, and lunatics, excepting during t lucid intervals, and to facts which came to their knowledg during fuch intervals.

2. Perfons may be excluded from teftifying who have been guilty of crimes and mifdemeanors, which affect their credit and render them infamous, as where they have been convicted of the crimes of high treafon, of felony, forgery, perjury, fubornation of perjury, confpiracy, theft, and barratry-So a perfon is excluded who has had an infamous judgment, and has flood in confequence of it in the pillory, or has been ftigmatized or cropped; but the crime must be such as to render a man infamous; for if a perfon be fet in the pillory for a libel, it will not difable him to be a witnefs.

It is not neceffary that an infamous punishment be actually inflicted to exclude a perfon from being a witnefs: it is fufficient that he is convicted of an infamous crime. b In all cafes, the record of the conviction must be produced in court, to exclude a perfon from teftifying on the ground of his conviction of an infa, inous crime. A pardon would restore the credit of witneflès in all cafes but a conviction for perjury: for in that cafe, this difability. is a part of the punishment. No witnefs can be compelled to anfwer any question that tends to criminate himself.

Salk. 688. Idem, 689. Salk. 689.

Morgan's Effiys, 259,

It

Vent. 349.