Hearfay is admiffible evidence to prove what a witness has faid, either in corroboration of his teftimony, as to fhew that he is confiftent and has uniformly told the fame ftory: or in contradiction of it, to fhew that he has before told a different ftory, and that he is not to be credited. What the party has been heard to fay or acknowledge against his own intereft, may be admitted to be given in evidence against him: but he cannot be allowed to prove what he has faid in his own favour. Thus when party has acknowledged the commiffion of a trefpafs, the existence of a debt, or the execution of a contract, it is good evidence; fo is any thing he has faid refpecting any matter in difpute. But when proof is admitted of the confeffion of the party at any particular time, the whole of his conversation shall be taken together, and not some detached part of it; for it may be the case that some expreffion taken feparately might operate against him, but would not if taken in connexion with the whole story. 7. The general Rules of Evidence. He who produces a wit nefs has a right in the first place to go through with his examination, then the other party may cross-examine him. I. The first general rule of evidence is, that in every iffue the affirmative is to be proved. This rule is founded in the nature of things as a negative cannot regularly be proved, and there-fore it is fufficient to deny what is afirmed till it is proved; but when the affirmative is proved, the other party may conteft it by oppofite proofs, for that is not properly the proof of a negative, but of a propofition totally inconfiftent with what is affirmed, 2. A fecond general rule is, that no evidence need be given of what is agreed by the pleadings, for the jury are only to try the matter in iffue between the parties, fo that nothing elfe is properly before them. So the jury cannot find any thing against that which the parties have affirmed, and admitted of record, tho the truth be contrary. C 3. A third general rule is, that wherever a man cannot have advantage of any special matter by pleading, he may give it in Bull N. P. 299. Efpin. dig. 778. evidence Ibid. e Doug. 155. a evidence under the general iffue. In trover, the defendant may give a fpecial juftification in evidence, because he cannot plead it. 4. A fourth general rule of evidence is, that the best evidence which the nature of the thing admits and is capable of, must always be given. The true meaning of the rule is, that no fuch evidence fhall be brought that from the nature of the thing fuppofes still better evidence behind, in the parties power or poffeffion; for fuch evidence is altogether infufficient and proves nothing; as it carries a prefumption contrary to the intention for which it is produced; for if the greater evidence could make for the party, why is it not produced? This rule therefore confifts of to parts. 1. It must be the best evidence. 2. It must be in the party's power, or poffeffion; for if not, it is not his default that it is not produced; therefore where any deed, or inftrument appears to be loft, without any fault in the party, in fuch cafe, a copy is good evidence. There fore no parol evidence of any fact or agreement shall be admitted, where there is written evidence of fuch fact; for witten evidence fpeaks for itself, is liable to no perverfion or mifconftruction, and is more accurate than memory can be, which is uncertain, and fallible. If the original is proved to be loft or destroyed, then copies are admiffible; for then the copy is the beft evidence. So if the original is proved to be in the hands of the oppofite party, in fuch cafe a copy may be given in evidence, if fuch party refuses to produce it upon notice given for that purpofe. But if a copy of a deed or fucli like inftrument is offered in evidence on the ground of the original being loft, it must be proved by a witness, who compared it with the original, otherwife there would be no proof of the copy, or that it had any relation to the deed. If there be no copy, then parol proof is admitfible with refpect to the import and contents of the writing. Where a copy is offered in evidence, fufficient probability must be fhewn to the court, to fatisfy them, that the original was genuine, as well as that it was loft, before the party fhall be admitted to read it. 5. A fifth general rule of evidence is, that parol evidence can a 1 Jones,, 240. e I Atk. 446. never b Erpin. dig. 785. c Bull. N. P. 294. di Mod. 4. Efpin. dig. 787. Bull. N. P. ¿97• : be never be admitted to explain, controul, vary, or contradict written but where there is a doubt on the face of the words, refpe&tthe matters to which they refer, in fuch cafe parol evidence may admitted to explain fuch facts. Ambiguities, or doubts refpecting the conftruction of deeds, are divided into ambiguities that are fe cret, or not apparent, and ambiguities that are apparent. An ambiguity not apparent is, that which feems certain and without doubt, for any thing which appears on the face of the deed, or inftrument; but there is fome collateral matter out of the deed or inftrument, which creates the ambiguity. Where the ambiguity is of this nature, parol evidence is admiffible, for the inftrument itfelf being certain, but the doubt arifing from fomething extrinfic, extrinfic matter fhould be admitted, particularly as it fortifies and gives effect to the written evidence. But where any implication or conftruction of law arifes from any written evidence whatever, parol evidence may be admitted to explain that implication; for that is not to alter the written inftrument itself. The implied revocation of a will by a fubfequent marriage and birth of a child, is liable to be rebutted by parol evidence. So where the testatrix devised her estate to her couzin John Cleere, and there were both father and fon, of that name; it was held that parol evidence was admiffible to prove, that the son of that name was the perfon meant; for as the objection arofe from parol evidence, parol evidence ought to be admitted to anfwer it. An apparent ambiguity is that which appears in the face of the inftrument or deed, and is an omiffion, and can therefore never be fupplied by an averment, for that in effect would be to make that pafs without deed, which the law appoints fhall not pass without deed. As where there was a devife in a will, but the devifee's name was omitted, it was held that parol evidence was inadmiffible to fhew who was meant : for that would be to add to the inftrument. In a fpecial action of indebitatus affumpfit, for part of the price for which land was fold and conveyed by deed, two questions a rofe, whether the plaintiff might introduce evidence to prove that the land had not been paid for, contrary to his acknowledge Bull. N. P. 297 Sup. C. 1792. ment Ibid. Efpin, dig. 788. Cone vs. Tracy, ment in the deed, that he had received the confideration money s and whether parol evidence by the ftatute of frauds and perjuries was admiffible to prove money to be due in confideration of the fale of lands. The court determined that the acknowledgement of a onfideration having been received in the deed, is neceffary to authenticate the deed, and eflops the grantor from denying it, but is not evidence of the actual payment of the money, fo that the plaintiff may prove any fubfifting obligation for the money whereby it is ftill due and that this contract having been executed on the part of the plaintiff, is thereby taken out of the statute, and to allow the defendant to take advantage of that statute, would be perverting a ftatute made for the prevention of fraud, to the pro tection of fraud. 6. As to the point how far the characters of witnesses may be impeached on trials it is fettled, that in the impeachment of the credit of a witnefs, you can only enquire and examine into his general character in refpect of truth; but may not be adinitted to prové particular facts; for every man is fuppofed to be capable of fupportgin the one, but it is not likely that he should be prepared to anfwer the other without notice. In thefe cafes, the witnefs is not to give evidence of his particular opinion, with refpect to the character of the witness, attempted to be impeached from mere perfonal knowledge; but what is the common reputation of the witness, in the general eftimation of his neighbours and acquaintance. A party fhall never be permitted to bring general evidence to difcredit his own witnefs; for that would be to enable him to deftroy the witnefs, if he spoke against him, and to make him a good witness if he spoke for him, with the means in his own hands, to deftroy his credit if he spoke against him. But if a witness proves a fact in the cause which makes against the party who called hinr, yet the party may call other witneffes to prove that these facts were otherwife; for fuch facts are evidence in the cause, and the other witneffes are not called directly to difcredit the firft; but the impeachment of his credit is incidental and confequential only. 7. The laft general rule of evidence is, that if the substance of iffue be proved, it is fufficient: but this rule in its greatest extent is applicable only in cafes founded on torts; for there it is not neceflary to prove the trefpafs or injury to be done on the day alledged and in action of waste for cutting twenty ashes, proof that the defendant cut ten is fufficient, for the iffue is waste or no wafte. C In all actions on parol contracts the day is not material, and in actions of implied promise it is not neceffary to prove the precife fum declared for. 6 But in all actions founded on express contracts whether parol or written, the plaintiff must prove the contract ftated in his declaration, expressly as laid; and a variance may be taken advantage of under the general iffue; for his proof must correfpond with his allegations. The plaintiff declared on an agree. ment by the defendant, to deliver him good merchandizable corn; proof of an agreement to deliver corn of the fecond fort, was held not to fupport the iffue. The plaintiff declared on a note for Weft-India goods, and the note produced in evidence was for rum and molaffes, the variance was held to be fo material, that the note did not fupport the flue. So in affumpfit against feveral, a joint contract must be proved or the iffue is not fupported. The plaintiff's proof muft correfpond with his title as laid in the declaration. g As in action by a landlord against his tenant for negligently keeping his fire, the declaration was of a demife for a term of years, and the evidence of a tenancy at will, this va riance was held to be fatal, It has already been remarked that one witnefs is fufficient to prove a fact; but as in the course of trials a number of witneffes are adduced on each fide, whofe teftimony is not entirely confiftent, it becomes neceffary to adopt fome general rule to direct the mind of the triers in weighing the evidence laid before them. Where there is an apparent inconfiftency or contradiction in the testimony of witneffes, it is a general rule that fuch interpretation and construction shall be put upon it as to make it agree if poffible: for the law will prefume that every body fwears the truth, and that no man will be guilty of perjury. If fuch conftruction can be given K k Co Lit. 282. b 1 Espin. dig. 141. Dame, Sup. C, 1792, Bull. N. P. 129. as Ld. Raym. 735. d Brewfler vs |