*The attorney of a party in the cause may be examined like any other witness, where he knew the fact before the retainer, that is, before he was addressed in his professional character (1); or, where he has made himself a party to the transaction (2); or, where he is questioned to a collateral fact within his own knowledge, or to a fact which he might have known without being intrusted as attorney in the cause (3). Thus, if he is a subscribing witness to a deed, he may be examined concerning the execution (4). So, if there be a question about an erasure in a deed or will, he may be asked, whether he had ever seen the instrument in any other state, for it is a fact within his own knowledge; but he ought not to be permitted to disclose any confessions, which his client may have made to him. on the subject (5). So, if an attorney were present when his client was sworn to an answer in chancery, he might be a witness on an indictment for perjury, to prove the fact of taking the oath, which is a fact not peculiarly within his knowledge as an attorney, and not committed to him in secrecy (6). So, the attorney of one of the parties may be examined as to the contents of a written notice, which had been received by him in the course of the cause calling upon him to produce papers (7).

On the same principle, in an action of debt upon a bond, the plaintiff's attorney was admitted by Lord Kenyon to prove, that the bond had been given on an usurious consideration (8). And, where a person, (who had brought an action on a promissory note, which was afterwards compromised by the defendant,) had informed the attorney

(1) Cuts v. Pickering, 1 Ventr. 197. Lord Say and Seale's case, 10 Mod. 40.; Bull. N. P. 284. S. C. 4 T. R. 759.

(2) Duffin v. Smith, Peake N. P. C. 108. Robson v. Kemp. 5 Esp. N. P. C. 52. Cowp. 815.

(3) Bull. N. P. 284. Per Lord Mansfield, C. J. in Duchess of Kingston's case, 11 State Tr. 253.

(4) Doe d. Jupp v. Andrews,
Cowp. 846.
Robson v.
Kemp, 4

Esp. N. P. C. 235. ; 5 Esp. N. P. C. 53. S. C.

(5) Bull. N. P. 284. 1 Ventr.

197.

(6) Bull. N. P. 284. Per Ltd Mansfield, C. J. in Cowp. 846. R., v. Watkinson, 2 St. 1122, contra ; but the reporter makes a quære.

(7) Spenceley v. Schullenberg, 7 East 357. (8) Duffin v. C. 108.

Smith, Peake N. P.

after the compromise, that there never had been any con-
sideration *for the note, the Court of King's Bench held,
that the attorney was compellable to disclose that circum-
stance, in an action brought to recover back the money (1).
The communication, said Lord Kenyon, was not here
made in contemplation of a suit. On the contrary, the
purpose in view had been already obtained; and what was
said by the client was from exultation, in having before
deceived his attorney as well as his adversary (a).
(1) Cobden v. Kendrick, 4 T. R. 432.

* 106

CHAP. VII.

Of certain general Rules of Evidence.

Ir no objection is made to the competency of a witness, and he is allowed to give evidence, the next question is, what evidence ought to be given; and in what manner is

(a) An attorney may be examined whether a note put into his hands to collect was indorsed or not. Baker v. Arnold, 1 Caines' Rep. 258.

The privilege of secrecy is so strictly confined to the cases of attorney, solicitor, or counsel, that not only physicians are admis sible to disclose the knowledge which they have acquired in their professional characters, as stated in the text, but a priest of the Romish church cannot refuse to answer questions respecting facts which came to his knowledge in a confidential communication, on the ground that it was made to him in the exercise of his clerical functions, and that the principles of his religion forbade him to disclose it. Butler v. Moore, 1 M Nally 253. A prisoner being a papist, had made a confession before a protestant clergyman, of the crime for which he was indicted, and that confession was permitted to be given in evidence on the trial, and he was victed and executed. Rex v. Sparkes, cited Peake's Cas. 77. not

If one who is sitting as judge or juryman, happen to knto a fact with which the other judges or jurors are unacquainted, he sworn

T

* 107

the witness to be examined. It will, therefore, now be necessary to inquire into certain general rules, which have been established, for the purpose of directing the testimony of witnesses, and for the more effectual attainment of the ends of justice. The consideration of these rules will form. the subject of the present chapter; and in the next chapter some inquiry will be made into the mode of examining witnesses.

The order in which it is proposed to consider the subject, is the following:

First, As to the number of witnesses to the proof of a fact;

Secondly, Of the nature of presumptive evidence;

Thirdly, That evidence is to be confined to the points in issue;

*Fourthly, That the affirmative of the issue is to be proved;

Fifthly, That the substance only of the issue need be proved;

Sixthly, That the best evidence is to be given, which the nature of the case admits;

Lastly, That hearsay evidence is not admissible.

SECT. I.

As to the Number of Witnesses for the Proof of a Fact.

THE general rule at 'common law is, that a single witness, if credible, is sufficient for the proof of any fact; in which respect the law of England differs from the civil law, where one of the maxims is, "unius responsio non "omnino audiatur." Lord Coke, indeed, has said in his

-R· 52.

and orill.

examined as to the fact, the same as any other witness, Lise, ually liable to cross-examination. Peake Ev. 10. n. 2 Hauhoe C. c. 46. § 17.

and

Commentary (1), that "when a trial is by witnesses, as in the case of the challenge of a juror or summons of a tenant, the affirmation ought to be proved by two or more witnesses, but where the trial is by verdict, there the judgment is not given upon witnesses, but upon the verdict, and upon such evidence as is given to the jury they find their verdict." But this distinction has been denied by Lord Holt (2), and the doctrine is said not to be warranted by the authorities cited in its support. By our law, however, the testimony of a single witness will not be sufficient in a few particular cases.

* 108

First, On an indictment for perjury, the evidence of In case of one witness is not sufficient to convict the defendant; be- perjury. cause then there would only be one oath against another. "To convict a man of perjury," said C. J. Parker, *in the case of the Queen v. Muscot (1), "there must be strong and clear evidence, and more numerous than the evidence given for the defendant." It does not appear to have been laid down, that two witnesses are necessary to disprove the fact sworn to by the defendant; nor does that appear to* be absolutely requisite. But, at least, one witness is not sufficient; and, in addition to his testimony, some other independent evidence ought to be adduced.

treason.

Secondly, It was enacted, for the security of the subject, In case of by stat. 1 Ed. 6. c. 12. § 22., that "No person shall be indicted, arraigned, condemned, or convicted for any offence of treason, petit treason, misprision of treason, unless the offender be accused by two sufficient and lawful witnesses, or willingly, without violence, confess the same (a)." By the common law one witness would have been sufficient on the trial of those offences (b); and this

(b) Acc. 1 M Nally 31. The statutes of Edw. 6. not having been enacted in Ireland, one witness was held sufficient to convict for high treason.

109

is the first act of the legislature, where two witnesses are required. A similar provision is contained in the stat. 5, 6 Ed. 6. c. 11. § 12., which enacts, that "No person shall be indicted, arraigned, condemned, convicted, or attainted for any of the treasons or offences in that act mentioned, or for any treasons which then were or hereafter might be, unless the offender should be accused by two lawful accusers, who at the time of the arraignment should be brought, &c., unless the party arraigned should willingly, without violence, confess the same." So that two witnesses would at that time have been necessary in treasons relating to the coin of the kingdom. But an alteration in this respect was made by the stat. 1, 2 Ph. & Mary, c. 10. § 12., and 1, 2 Ph. & Mary, c. 11. § 3., which provided, that "in all cases of high treason concerning the current coin, or for counterfeiting the king's signet, privy seal, and great seal, or sign manual, and on trials for bringing counterfeit coin into the realm, or for any offence concerning the impairing, counterfeiting, or forging the cur*rent coin, the prisoners should be tried by the same evidence, as they were before the reign of Edward the Sixth (1)." In these cases, therefore, a single witness will now be sufficient; and it has been agreed by all the judges, that these statutes extend to all offences, touching the impairing of the coin, which should afterwards be made treason (2). The stat. 7, 8 W. 3. c. 3., which relates only to such treasons as induce corruption of blood, enacts in the second section, that "No person shall be tried or attainted of that species of high treason, or of misprision of such treason, but by the oaths and testimony of two lawful witnesses, either both of them to the same overt act, or one of them to one, and the other of them to another overt act of the same treason; unless the party indicted and tried shall willingly, without violence, in open court confess the same, or shall stand mute, or refuse to plead, or in cases

(1) The like provision in statute $, 9 W. 3. c. 26. s. 7. and stat. 6 G. 3. c. 53. s. 3.

(2) Gahagan's case, 1 Leach Cr. C. 50. 1 East P. C. 129. S. C.