1 3. It is a general rule, that no perfon can be admitted as a wit. nefs who is interested in the action, that is, who is to be a gainer or lofer by the event of the fait; whether fach advantage be direc and immediate, or only confequential. The interck which amounts to a disqualification, na ncaa the obtaining fome profit, bettering the witness's condition or eftate, not the intereft arifing from eftablishing a higher character, or exculparing limfelf from a charge of nifconduct or neglect, The party who objects to the admiffion of a witness, because he is interefed in the event of the fuit, may either fhew it by direct proof or he may challenge him upon the voir dire oath; but cannot purlue both these methods with the feme witnefs. If the voir dire oath be adminiftered to fuch perfon, he is only to be queftioned refpecting his intereft, and whether he fhall gain or lofe by the event of the fuit. I he will fully anfwer in the negative, he muit be admitted: but if on trial his interell should become apparent, his tellimony ought not to be regarded. It is a rule that has been repeatedly recognized by our courts, that where a witnefs is interested in the queftion to be tried, he cannot be admitted to teftify in the fuit on account of the bias it throws on his mind. Thus where the queftion in the a&ion refpe&ted a fracdulent conveyance, a witnefs was offered who had attached eftate dependent on the fame conveyance, but was rejected by the court because he was interefled to prove the conveyance to be fraudulent, to recover his own debt, and therefore was interested in the very queftion en trial. But as the verdic could not have been given in evidence in his favour, and as it could not be kaown whether he would ever bring an action, there does not feem to be * that certainry of intereft which ought to exclude a witness. Indeed in all cafes where a perfon is interefed ia the question to be decided by die event of a fit, and not in the tiit, it would be better that this hould go to the credibilty, than the competency of the with fs; and this is the prevailing do&rine in the courts of Great Britain. In all cafes of joint trepales, the plaintiff may improve a joint trefpafer not named in his action, to be a witnefs against the ref: tho their conviction will forever bar an action againft. ■ I'pim. Dig. 707 against fuch witness for the trefpafs. a A naked truft without in tereft, does not exclude a perfon from being a witness. Generally if the intereft be ever fo trifling, provided it be certain, it fhall prevent a perfon from being a witnefs: but where corporations, as towns, and focieties are concerned, the members are allowed to teftify from the neceffity of the cafe, as no other perfon can be fuppofed to know the facts, and their exclufion would render it impoffible to obtain any proof; and the intereft generally is fo trifling as it refpects each individual, that it cannot be fuppofed to operate upon the mind with fufficient influence, to induce them to deviate from the truth, and commit perjury-But in cales of corporations, agents as they are more immediately and perfonally concerned in the fuit, are not allowed to be witneffes. A perfon may be admitted voluntarily to teftify against his intereft, but cannot be compelled. In all cafes where a perfon is offered as a witness and it appears that he is interested, if he can become difinterested by any act, he may be admitted. For this purpose he may discharge the defendant or plaintiff of any demand which he has, that is affected by fuch fuit, or may receive discharges from them or any other perfons: and if it be in the power of the perfon offering the witnefs, or of the witnefs to release or destroy his intereft, he may be a witnefs, and this may be done in open court while the cafe is on trial, with the express design to let him in to teflify but it may be confidered how far fuch circumstances may affect the credit of the witnefs. 4. Attornies may not be permitted to difcover the fecrets of their clients, intrufted to them in the confidence of their employments tho they offer themselves for that purpose; for it is the privilege of the client, and not of the attorney. It is contrary to the policy of the law to permit any perfon to betray a fecret with which the law has entrusted him. But there are cafes in which attornies may be examined: firft, as to what they knew before their retainer, for as to fuch matters they are clearly in the fame fituation with any other perfon, and otherwife a party might conceal evidence by retaining a material witnefs, if he belonged to the profeffion of the law. Secondly, to a fact in his own know Ii ledge I Stran. 140. ledge, without being counsel or attorney in the caufe. As fuppofe him to be a witness to a deed produced in the caufe, he fhall be examined as to the time of execution. So if the question be about a rafure, or interlineation in a deed, he might be examined to the question, whether he had ever feen fuch deed in other plight, for that is a fact of his own knowledge: but he ought not to difcover any confeffions his client may have made to him on fuch head. But the facts which the attorney is not bound to disclose are fuch communications as are made to him by his client pending the fuit, as inftructions to him in the conduct of it, for if matters are difclofed to him after the end of the fuit, tho they may respect it, he may be called on to give evidence of those. Communications however confidential and under the promise of fecrecy made to any perfons but attornies, must be difclofed by witneffes when under oath. Au attorney is not bound to produce papers, and fuch like, which may have been delivered to him by his client as evidence against him for fuch would be equally contrary to the policy of the law. : 3. The instances in which a perfon may be a witnefs in his own cause. It is a general rule of law, that a man cannot be a witness in his own. caufe: in civil caufes, the rule is equally extensive, that husband and wife cannot teftify for each other, and this is the only relation that excludes witneffès. But from neceffity, certain exceptions to the general rule, that no man can be a witness in his own caufe, have been introduced, because other testimony could not be obtained. I The parties are admitted as witnesses in actions of book debt. 2. In all cafes where a bill of ufury is filed on the second day of the fitting of the court, the plaintiff is compellable to difclofe his knowledge refpecting the facts in queftion, and may appeal to the confcience of the defendant. 3. The agent, factor, trustee, attorney, or debtor to an abfconding debtor, in a fcire facias brought against him is compellable to difclofe on oath, and discover any estate in his hands or debts that he owes, that are the estate of the abfconding debtor. 4. In cafes of private affault, the party is by ftatute admitted to his oath from the neceffity of the cafe Mills, vs. Grifwould. Sup. C. 1792 3 Burr, 1687. Efp. dig. 718. 5. In certain actions of trefpafs given by ftatute, the party may be a witness. 6. In qui tam profecutions for theft, the party is admitted to fwear to the lofs of the goods and their identity. 7. In fuits to recover for counterfeit money, the party is admitted to fwear to his receiving the money. 8. In profecutions to recover for the maintenance of bastard children, the mother is admitted as a witnefs. 4. Of the number of witneffes required by law. By our law one credible witness is confidered as fufficient to prove any matter of fact, in a fuit of a civil nature. This has ever been the common law of England, and the principle is founded in reafon; for in the common intercourfe of mankind, it will frequently happen that a greater number of witnesses could not be obtained with respect to questions of fact, and as the human mind may be fatisfied of the truth of a fact by a fingle witness, it would be unreasonable to require higher proof; but the Roman law, which has been highly celebrated, and to which the modern nations of Europe are greatly indebted for their jurisprudence, required two witneflès to prove a fact. 5. Of prefumptive Proof. In all cafes direct and pofitive proof is to be adduced if it can be obtained; but if this be impoffible, then the law admits of circumftantial or probable evidence. Prêfumptive proof is either violent, or probable. Violent prefum ptions are, where circumstances are proved which usually and neceffarily attend the fact; and are therefore confidered to be full proof. till the contrary appears. As if a man be found fuddenly dead in a room, and another be found running out in hafle with a bloody fword. This is a violent prefumption that he is the murderer, for the blood, the weapon and the hafty flight, are all the ufual concomitants of such a horrid deed, and the next proof to the fight of the fact itfelf is the proof of thofe circumftances, which do neceffarily attend fuch fact. So if a man gives a receipt for the laft year's rent it is prefumed that the former is paid: for a man is fuppofed to collect debts of the longest flanding. Every prefumption is more or less violent according as the feveral circumftances fworn, do more or lefs ufually accompany the fact to be proved. Where poffeflion has always accompanied an old deed, it is a violent prefumption of its validity. With regard to probable prefumptions, it is impoffible to lay down precife rules by which a jury are to be governed. Each particular cafe muft depend upon its own complexion, and circumstances. : 6. Of hearfay Evidence. It is a general rule, that the hearsay: of a person who is neither a party or a witnefs in a fuit, cannot, be admitted to be given in evidence. Where two are jointly. and feverally bound in an obligation and action brought against one, proof of what the other has faid, cannot be admitted. What a perfon, has been heard to fay, who is interested in the event of the fuit; but is not a party and cannot be a witness, cannot be given in evidence for tho a perfon may confefs for himself, he cannot for another. What a party to a fraudulent conveyance, but not to the fuit, has been heard to fay, is not admiffible evidence, But to this general rule there are fome exceptions.-Where either of the parties ftand in the place of the perfon whofe converfation is, offered to be proved, the other may be admitted to prove fuch hearfay. In fcire facias againft, a garnifhee, he may prove that the perfon to whom he is challenged to be a debtor, has acknowl. edged, that he owed him nothing, for the plaintiff stands in his place. So what the teftator faid, is good evidence in an action by the executor or adminiftrator, for they reprefent him. So where the agent to one party, who made the contract, faid at the time when it was made, may be proved in an action respecting that contract, for he was in the place of the party. What old people have been heard to fay with respect to the bounds of land, and who are dead, may be given in evidence in an action where the bounds are in queftion. Where positive proof is not to be had, the declarations of perfons uninterested, and who are then dead, may be given in evidence. As in questions of legitimacy, it has been practifed to admit evidence of, what the parents have been heard to fay with respect to their marriage. So hearfay is good evidence in cafes of pedigree, as to prove who was a man's grandfather. In queftions of prefcription, hearfay is good evidence to prove a general reputation. @ Kitb. 179. ¿ Ibid, 62. Ibid, Hearfay e DeWit, vs. Baldwin, Sup. C. 1789. 86. |