me most of his property; I did not know, at the time of his death, that he had made another will, revoking his former will; I went before the surrogate, for the purpose of having the first will proved; I then first heard that he had made a second will, giving all his property to his brother." The direct examination of this witness would have placed him at ten on the scale of credibility; but from the fact which comes out on the cross-examination, that witness had had a quarrel with the testator, and notwithstanding he swore positively, on his direct examination, that the testator had not been of sound mind for four years before his death, yet he admitted that he had produced another will, made by testator within six months of his death, before the surrogate, for the purpose of probate. The credibility of the witness is so badly shaken by the cross-examination, that he cannot be placed above four on the scale of credibility.

7. The counsel for the contestants then call Dr. Edwin Bradbury, who testified as follows: "I have practised as a physician and surgeon for twelve years; I have had several cases of insanity under my treatment; I have known the testator from my early childhood; I am sure that he has been of unsound mind for the last four years of his life." On cross-examination, witness said: "I am a nephew of the testator, and brother of the last witness examined; I have not practised as a physician all the time for the last twelve years; I cannot give the name of any patient who has been under my treatment for insanity; I cannot tell what year I had such patient under my treatment." The evidence of this witness is so much shaken by his cross-examination, that he is not entitled to be placed above five on the scale of credibility.

amination? Where would his direct examination place him on the scale of credibility? What is the effect of his cross-examination? Where should he be placed on the scale of credibility?

7. Who is the next witness called by the counsel for the contestants? To what facts does he swear on his direct examination? On his crossexamination? What is the effect of his cross-examination? Where should he be placed on the scale of credibility"?

8. The counsel for the contestants then called Dr. John Smythe, who testified as follows: "I was called to see the testator about four years before his death; I have practised as a physician and surgeon for twelve years; I called to see testator three or four times about four years I believed him to be insane at that time, and so expressed myself to several persons about that time." On cross-examination, witness says: "I cannot state any thing he said, or any thing he did, which led me to believe he was insane; I cannot say what the symptoms of insanity are; I cannot say whether such insanity would be likely to continue for four years." If testator' were of unsound mind four years before he made his will, it would be a circumstance from which some slight inference of his insanity at the time of making his will might be drawn; but such evidence has a bearing so remote upon the issue, that, if admitted at all, it should not stand higher than one on the scale of credibility. The counsel for the contestants here closes his part of the case.

9. The counsel for the executors then proceeded to fortify and sustain the evidence of his first witnesses, and rebut the evidence given on the other side, by presenting additional and cumulative evidence. The first witness called for this purpose was Dr. John Ford, who testified as follows: "The testator was under my care, while he was spending the time in the country four years ago, for a period of three months; I saw him almost every day; he was of sound mind at that time, and showed no symptoms of insanity."

This evidence rebuts the evidence of two witnesses on the part of the contestants, who swear to insanity of testator for four years; and although relating to a re

8. Who is the third witness called by the counsel for the contestants? To what facts does he swear on his direct examination? On his cross-examination? Where should this witness stand on the scale of credibility? What may the counsel for the contestants here do?

9. What does the counsel for the executors then proceed to do? How? Who is the first witness called for this purpose? To what facts does he

mote period, should stand at five on the scale of credibility.

10. The counsel for the executors then called Dr. Moses Fog, who testified as follows: "I know testator; he was a patient of mine for three months three years ago; he was of sound and disposing mind and memory at that time; if there had been any symptoms of insanity, I should have noticed them." This witness should be placed on the scale of credibility at five. This completes the evidence presented on each side; and the jury are to calculate the sum of the weight of evidence produced by each party, and to state in whose favor the balance of the weight of evidence lies.

11. The evidence as weighed stands as follows:

12. A competent witness may swear positively to a material fact; yet it may appear on his cross-examination, or it may be shown by other witnesses, that his character is so infamous that his evidence is entitled to no credit with the jury. The evidence of such witness would be placed at zero on the scale of credibility. An infant of very ten

swear on his direct examination? On his cross-examination? Where should this witness stand on the scale of credibility?

10. Who is the next witness called by counsel for executors? To what facts does he swear on his direct examination? On his cross-examination? Where should this witness be placed on the scale of credibility? What does this complete? What are the jury now to calculate? What are they to state?

11. How does the evidence as here weighed stand? In whose favor is the balance? To what amount?

12. What may appear on the cross-examination of a competent witness who swears positively to a material fact? What is the effect of such cross-examination? Where should such evidence be placed on the scale

der age is competent to give evidence, if he understands the nature of an oath and the consequence of swearing falsely; yet from the fact of the tender age of the infant, and that the story he tells may have been taught to him by others, his evidence should be received with great caution; and, if uncorroborated, should not be placed higher than one on the scale of credibility.

13. An accomplice in the commission of crime is a competent witness against others engaged in the commission of the same crime, and his evidence may be submitted to the jury, although he may be entirely uncorroborated; yet his evidence should never be placed above one on the scale of credibility. When a witness varies in a material point from his evidence given on a former occasion, his evidence should not be placed above two on the scale of credibility.

14. Written evidence is entitled to greater weight than oral. The best evidence of a contract is the contract reduced to writing, signed by the parties to be bound thereby, and attested by a subscribing witness. If this contract has been lost or destroyed, the next best evidence in the scale of credibility is a copy of the contract duly proved. If there is no copy of the contract, parol evidence of the contract and of its terms may be given. The first class would stand at ten, on the scale of credibility; the second class should not be placed higher than six, and the third class should not be placed higher than four. 15. A large majority of men are innocent of crime; and the law therefore presumes that all are innocent, until

of credibility? When is an infant of tender age a competent witness? Where should his evidence be placed on the scale of credibility? Why? 13. Is an accomplice a competent witness? Where should his evidence be placed on the scale of credibility? If a witness varies in a material point from his evidence given on a former occasion?

14. Which stands highest on the scale of credibility, written or oral evidence? What is the best evidence of a contract? What evidence stands next to the contract itself? What evidence stands next to a copy? How should these three classes of evidence be placed on the scale of credibility?

15. Why are all men presumed to be innocent of crime until proved to

they are proved guilty. If in weighing the evidence for and against the prisoner the beam of the scales is horizontal, and the scale in which the guilt of the prisoner is placed is not carried down, but is evenly balanced by the scale in which the proof and presumption of innocence is placed, this fact raises a doubt in the minds of the jurors, and the prisoner is entitled to the benefit of the doubt, and must be acquitted.

CHAPTER CXVI.

REFEREES.

1. REFEREES are judicial officers appointed by the court. The place of conducting the reference is regarded as a branch of the court. The witnesses and counsel are there to be governed by the same rules which would control them in a court of law. All issues in an action may be sent to a referee, upon the written consent of the parties, except where an infant is a party. When the parties do not consent, the court may direct a reference-1. When the trial of an issue of fact will require the examination of a long account; 2. When the taking of an account is necessary; 3. When a question of fact, other than upon the pleadings, shall arise. A certified copy of the order of reference should be served on the referee. This is his authority under which he acts. It would be irregular to take any action in the case until such service. The referee

be guilty? What circumstances in weighing the evidence should raise a doubt in the minds of the jurors? Who is entitled to the benefit of this doubt?

1. What is the official character of a referee? How is the place of conducting the reference regarded? By what rules are the witnesses and counsel there governed? What issues may be sent to a referee on consent? If the parties do not consent, when may the court direct a reference? What should be served on the referee? What is the authority under which he acts? Can he take any action before such ser