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OF THE AMERICAN EDITOR.
The design of the editor was, principally, to collect
OF THE AMERICAN EDITOR.
"he design of the editor was, principally, to collect e decisions of the different courts in the United States, nnected with the subject of the following work, the doubted merit of which, justly entitles it to a prefer. ce to all former treatises on the law of evidence. The uberance of the subject itself, and a solicitude to insert cry thing which could be deened useful, have swellthe notes greatly beyond what was originally expectand intended; and yet the learned reader will perve that they might have been made still more extene; that much has been omitted by design, and much,
doubt, through inadvertence. All the American rks of celebrity and merit have been carefully conced, and though some others, of a contrary descrip7, have been entirely neglected, yet it may not be proper to apologize for a number of references to se and obscure reporters. A few additional English horities have been collected, and in two or three inces it has been attempted to supply, however imperly, some omissions of the author-omissions arising from ignorance or carelessness, but from bis desire compress the work; and it is not unlikely tbat, upon eful examination, what might at first sight have apred an omission, would be found to be no other
a necessary deduction from some principle which been before fully stated. The editor submits his las, such as they are, to the candour of the profesand if they should be thought undeserving of ap
In the present Edition of the Treatise on Evidence, the Author has introduced several additions, which, he hopes, will be thought to render the Work more complete.-The most important of these is a section, in the eighth Chapter of the Second Part, on the subject of Written Agreements, with reference to the Statute of Frauds.This branch of law has been ably treated by other writers; but as it falls within the scope and design of the following Treatise, and is of almost daily occurrence in practice, the Author conceived that it would not be superfluous to give a compendious view of a subject of such general importance. It was his intention also to have added a Chapter on the evidence requisite to support particular Issues, in the several forms of action ; but various engagements have prevented him for the present from completing this design.
Many cases, reported since the last Edition, have been here inserted; and the author is much indebted to Mr. Maule and Mr. Selwyn, for their kindness in supplying him with their manuscript notes of other decisions, which have not yet appeared in print. The same acknowledgments are due to Mr. Price for communicating his man. uscript note in the case of Bullen v. Michel.
As the present Edition was sent to the
before the late trial at bar for High Treason, there was no opportunity of adverting to some discussions on points of evidence, which occurred on that occasion. It may there.
ation, he has at least this consolation, that they canTetract from the merit of the original work.
fore be proper to mention in this place, that one of the rules stated in the Chapter on the Examination of Witnesses*, was then discussed at some length. The rule referred to is, “that if a witness, on being questioned (for the purpose of discrediting him), whether he has not been guilty of felony, deny the charge, the party, against whom the witness has been called, will not be allowed to prove the charge.” This rule of evidence was considered and settled on the trials of Rookwood and Layer, which were also cases of High Treason; and it is now completely established as a principle, on the authority of all the Judges, who presided at the late State Trial.
* P. 229, 230.
Nou. 6, 1817.
e proper to mention in this place, that one of the tated in the Chapter on the Examination of Wit*, was then discussed at some length. The rule ed to is, “that if a witness, on being questioned e purpose of discrediting him), whether he has not uilty of felony, deny the charge, the party, against
the witness has been called, will not be allowed ve the charge.” This rule of evidence was con d and settled on the trials of Rookwood and
which were also cases of High Treason; and it completely established as a principle, on the au5 of all the Judges, who presided at the late State
* P. 129, 230.
In offering to the public the following Treatise on a subject, which has already been considered by writers of experience and ability, the author fears that he may be thought presumptuous. He trusts, however, that he will be forgiven, when it is recollected, that the subject, although it has excited so much attention, is yet one which is not easily exhausted, and with regard to which the practice of every day must constantly supply fresh materials for observation. Among the works on the law of evidence, the one most generally approved is that of Mr. Peake; and the present writer feels himself gratified in this opportunity of acknowledging its merits.
The author regrets, that he is unable to add more cases to those already published. The notes of the case of Brown v. Fox, of the Berkeley-Peerage case, and of Wiltzie v. Adamson, have been supplied by the kindness of friends; and for the manuscript notes of the following cases, R. v. Tucker, R. v. Croker, R. v. Cole, and R. v. Hodgson, he is indebted to an authority, on which the reader may entirely rely. The reported cases, which are cited, are numerous ; but none are mentioned, which have not been carefully examined.
Since the former part of this work has been printed, several cases connected with the subject have been reported; they did not, however, appear of sufficient importance to be added in an appendix. With respect to
a passage in the third chapter, on the incompetency of witnesses who have been excommunicated, it will be proper to observe, that in consequence of a late act of parliament,* which abolishes the sentence of excommunication for contempt, no disability of this kind can any longer exist.
The following pages are submitted to the public, with much diffidence and anxiety. The author feels, that many imperfections will be observed; and some, which, perhaps, more experience might have enabled him to avoid. He is conscious, however, that he has used ev. ery endeavour to render his work not unworthy of the public eye, and that he has devoted to it his time and utmost attention.
* Stat 53 G. 3. c. 127
June 14, 1814.