The general rule is, that the matter in issue is to be proved by the party who asserts the affirmative.1

But where one party charges another with a culpable omission, or breach of duty, the general rule above laid down does not apply. In such a case, the person who makes the charge is bound to prove it, though it may involve a negative for it is one of the first principles of justice not to presume that a person has acted illegally until the contrary is proved.2)

It is also a general rule, that the best evidence must be given of which the nature of the case is capable. The true meaning of this rule is not, that the strongest possible assurance of the matter in question is required; but that no evidence shall be given which, from the nature of the thing, supposes still greater evidence behind in the party's possession or power. Thus, if a party offer a copy of a deed or will, when he is able to produce the original, this raises a presumption that there is something in the deed or will, which, if produced, would make against the party, and therefore a copy, in such a case, is not evidence. But if he prove the original deed or will to be in the hands of the adverse party, to whom he has given notice to produce it, who refuses, or that the original has been lost or destroyed without his default, no such presumption can reasonably be made, and a copy, or parol evidence, will be admitted.

3

Under this rule, it is not necessary, as above observed, to give the strongest possible assurance of a fact. Thus, to prove the plaintiff's demand satisfied, the defendant may prove the fact of payment, or the plaintiff's admission to that effect, though it should appear that the plaintiff had signed a receipt, and it may be said the receipt would be more satisfactory proof.*

So, if it should be necessary to prove the hand-writing of a person to an instrument not a party to the suit, it will not be necessary to call that person to prove that he signed the instrument; but it may be proved by others acquainted with his hand-writing.5

6

7

It is also a general rule, that hearsay evidence of a fact is not admissible. To this rule there are some exceptious. Thus, hearsay evidence is admissible to prove a pedigree, or the death of a person.* Hearsay is often admitted as evidence as part of the res gesta; as, where it is necessary to inquire into the nature of a particular act, and

(1) Phil. Ev. 150.

(4) Id. 169; 7 Cowen, 334. (6) Id. 173.

(2) Id. 151; 19 Johns. 345.

(7) 8 Johns. 128; 5 Cowen, 237, 814.

(3) Phil. Ev. 167.
(5) Phil. Ev. 69, 170.

(8) 15 Johns. 226.

the intention of the person who did the act, proof of what the person said at the time of doing it, is admissible evidence for the purpose of showing its true character.1

The declarations of deceased persons have also been admitted in cases where they appear to have been made against their interest; as, entries in their books charging them with the receipt of money on account of a third person, or acknowledging the payment of money due to themselves.2

Entries in the books of a tradesman by his deceased clerk, who therein supplies proof of a charge against himself, have been admitted, on the same principle, to be evidence of the delivery of goods, or of other matter there stated within his own knowledge.3

The account books of a party, though the entries are made by himself, are in certain cases admissible in evidence. The general rule upon this subject is laid down in Vosburgh v. Thayer. In that case, it appeared that Thayer sued Vosburgh before a justice, for butchers' meat furnished by him to Vosburgh and his family. It was proved by several witnesses that he had been in the daily practice of supplying them with meat during the period for which he claimed payment. It was proved by some of those who dealt with him, that he kept just and honest accounts. He then offered his books of account in evidence, it appearing that he had no clerk. The books were objected to, but admitted. In deciding this case, the court say, "the admission of books of account in evidence, under proper limitations and restrictions, is not calculated to excite alarm, or to produce injurious consequences. They are not evidence of money lent. This was so held in Case v. Potter,5 because such transactions are not, in the usual course of business, matter of book account. They are not evidence in the case of a single charge, because there exists, in such case, no regular dealing between the parties. They ought not to be admitted, when there are several charges, unless a foundation is first laid for their admission, by proving that the party had no clerk; that some of the articles charged have been delivered; that the books produced are the account books of the party, and that he keeps fair and honest accounts, and this by those who have dealt and settled with him. Under these restrictions, from the necessity of the case, and the consideration that the party debited is shown to have reposed confidence by dealing with and being intrusted by the other party, they are evidence for the consideration of the jury. Testing

(1) Phil. Ev. 202.

(2) Id. 191.

(3) Id. 195.

(5) 8 Johns. 212.

(4) 12 Johns. 461.

the proceeding in this case, by these rules, there is no ground for reversing the judgment."

In a suit by a shoemaker for work done in the line of his business, to the amount of $11.50, after the proof of the delivery of one pair of shoes and the mending of another pair, that the plaintiff kept honest and fair books, and had no clerk, it was held that the plaintiff's account books were competent evidence.1

In the case of a public officer, as a sheriff, deputy sheriff, justice of the peace, constable, &c., it is sufficient to prove by reputation, that he acts as a public officer, without producing his appointment.2

If a witness who has been sworn and examined on a former trial or action between the same parties, and where the point in issue was the same, is since dead, what he swore at the former trial may be given in evidence; but the words of the witness must be proved, not what is supposed to be the substance of his testimony. And the witness must be dead; his being out of the jurisdiction of the court will not be sufficient. In such case, also, the testimony of a witness who cannot be found, after diligent inquiry, has been permitted to be proved, the same as in case of a witness since deceased.4

II. OF THE COMPETENCY OF WITNESSES.

The most formidable difficulty that presents itself to the justice, as well on a hearing by himself as on trial before a jury, is to determine upon the admission or rejection of testimony. This difficulty will discover itself in various shapes, and often in disguised forms. The intrinsic difficulty of the thing renders it next to impossible to lay down abstract rules that will be a guide in all cases. We will, therefore, next consider a few of the general rules in relation to the competency of witnesses.

When a witness appears, he must be regularly sworn, unless an objection be made to his competency. An exception to the credibility of a witness cannot exclude him from being sworn. The exception of kindred, for example, although it is a good cause of challenge against a juror, is not an objection to the competency of a witness; a father is a

(1) 11 Wend. 568.

(2) 3 Johns. 431.

(3) 6 Cowen, 162; Phil. Ev. 199, 200.

(4) See 1 Greenl. 163, and note.

competent witness for or against his son, or a son for or against his father. Such objections may affect the credibility, but do not affect the competency of a witness.1

Husband and wife, however, cannot be witnesses for or against each other, in any civil suit.2

The objections to the competency of witnesses are four-fold; 1st. For want of reason or understanding; 2d. Defect of religious principles; 3d. Infamy of character; and 4th. On the ground of interest.3

1st. Persons who have not the use of reason are, from their infirmity, utterly incapable of giving evidence, as persons insane, idiots and lunaties, under the influence of their malady.*

But lunatics and others, who are subject to temporary fits of insanity, may be witnesses in their lucid intervals, if they have sufficiently recovered their understanding.

A person born deaf and dumb is not on that account incompetent, but if he has sufficient understanding, may give evidence by signs, with the assistance of an interpreter.5

There is no precise age at which infants are excluded from being witnesses. Infants above fourteen are admissible the same as of full

But under that age, their admissibility is regulated by their ap parent sense and understanding of the nature and obligation of an oath. A witness, while in a state of intoxication, ought not to be sworn, nor be permitted to testify; and the justice may decide, from his own view, whether the witness is in such a situation that he ought not to be sworn, or admitted to testify.7

2d. Defect of religious principle. The proper test of a witness' competency, on the ground of his religious principles, is, "whether he believes in the existence of a God, who will punish him if he swears falsely."

518

All persons who believe in the existence of a God, and a future state, though they disbelieve in a punishment hereafter for crimes committed here, are competent witnesses."

A witness who believes in a God, and in punishment by him in this life only, is a competent witness. It is not necessary, in order to render a man a competent witness, that he should believe anything more

than that there is a Supreme Being, and that he will reward and punish either in this life, or a future life. Nothing but the belief of a God, and that he will reward and punish us according to our deserts, is necessary to qualify a man to take an oath.1

If a witness believe that he will be punished by his God, even in this world, if he swears falsely, there is a binding tie upon the conscience of the witness, and he must be sworn; and the strength or weakness of that tie is only proper to be taken into consideration, in deciding upon the degree of credit which is to be given to his testimony. It is a question as to his credibility and not to his competency.2

4

The common law recognizes any mode of swearing a witness, that he believes to be binding on his conscience; and our statute, it seems, does not vary the common law in this respect. Therefore, a witness may be sworn according to the form which he holds to be most solemn, and which is sanctified by the usage of the country, or of the sect to which he belongs. A Jew is sworn on the Pentateuch, a Mahomedan on the Koran, &c.5

3d. Incompetency on account of infamy of character.-Each and every person, who may have been convicted of the crime of rape, kidnapping, wilful and corrupt perjury, or subornation of perjury, arson, burglary, robbery, sodomy, or the crime against nature, incest, larceny, forgery, counterfeiting, or bigamy, are deemed infamous, and are forever rendered incapable of giving testimony. The competency of a witness may, no doubt, be restored, however, by executive pardon."

6

A conviction of a person for a crime, so as to exclude him from being a witness, cannot, in any case be proved by parol; and the witness himself is not to be questioned respecting it.

4. Incompetency on account of interest.—It is a general rule that all persons interested in the event of a suit are to be excluded from giving evidence in favor of the party to which their interest inclines them."

In Van Nuys v. Terhune, 10 the court lay down the following rule: "That if a witness will not gain or lose by the event of the cause, or

(1) 2 Cowen, 572, note; 1 Starkie Ev. 93. (3) 2 Gil. 554.

(5) 1 Starkie Ev. 23.

(2) 2 Cowen, 433, note.
(4) Breese, 28.

(6) Rev. Stat. 182, Sec. 174.

(7) See Const. Ill., Art. IV, Sec. 8; see also 1 Stark. Ev. 99, and authorities cited, by which it is held, that a pardon restores competency in all cases where the disability is a consequence of the judgment and not a part of it.

(8) Phil. Ev. 24; 13 Johns. 82; 14 Id. 182.

(10) 3 Johns. Cas. 82.

(9) Phil. Ev. 34.