or incompetent to give evidence, either from insanity or from infamy of character, or from interest, or when the subscribing witness is out of the State or the jurisdiction of the court, which, in a justice's court, is when the witness is not in the same or next adjoining county, or where he cannot be found after strict and diligent inquiry.2

If there are two or more subscribing witnesses, the calling of one to prove the instrument is sufficient; or if the absence of all of them be accounted for, proof of the hand-writing of one of them, or of the party signing the instrument, will be sufficient."

But if there are two or more subscribing witnesses, it is not enough to prove one of them dead or out of the jurisdiction of the court, and then prove his hand-writing with that of the party, but the absence of all the subscribing witnesses must be accounted for.4

But in cases where there is no subscribing witness, or the subscribing witness denies having any knowledge of the execution; or where the name of a fictitious person is inserted; or where the attesting witness was interested at the time of the execution, and continues so at the time of the trial; or where the person who has put his name as a subscribing witness, did so without the knowledge or consent of the parties; or if, after diligent inquiry, nothing can be heard of the subscribing witness, so that he can neither be produced himself, nor his handwriting proved; or if, at the time of the execution, he was of such an infamous character as to make him incompetent to give evidence-in these cases the instrument may be proved by proving the hand-writing of the party, or by any person present at the execution who did not subscribe it as a witness, or by proof of the admission of the party that he executed the instrument."

3. Of Proof of Hand-writing.

The simplest and most obvious proof of hand-writing is the testimony of a witness who saw the paper or signature actually written. But a great variety of cases must continually occur where such a direct kind of evidence cannot possibly be produced.7

The hand-writing of a person may therefore be sufficiently proved by a witness who is previously acquainted with his hand-writing, and who testifies that he believes the hand-writing in question to be his. This previous acquaintance with the hand-writing of a person may be

derived either from having seen the person write, or from papers received in the course of business, which there is sufficient reason to believe were written by the party, as letters, notes which have been paid, &c.1 Hand-writing cannot be proved by comparing the paper in dispute with other papers acknowledged to be genuine, either by a witness or by the court or jury.2

4. Of Proving Proceedings before a Justice.

The proceedings and judgment in a justice's court, are not strictly and technically a record; yet the material parts are in writing, and cannot be proved by parol.

A judgment of an inferior court, not of record, is usually established by the production of the book containing the minutes of the proceedings of the court, from the proper place of deposit, proved to be such by oral testimony. In order to entitle a transcript of a judgment of a justice of the peace of another State, to be received in evidence in this State, it must be shown, that by the laws of the State where the judgment was rendered, the justice had jurisdiction over the subject-matter upon which he attempted to adjudicate.5

V. OF PAROL EVIDENCE TO EXPLAIN, VARY, OR CONTRADICT WRITTEN INSTRUMENTS.

Parol evidence is not admissible to explain an ambiguity which appears on the face of an instrument, but it can be explained only by collecting the general intention from other parts of the writing, or by a reference to some event, or some other writing, or some medium of explanation adverted to in the instrument. If it be incapable of being explained in this way, it will be void, for uncertainty. The declaration of the parties as to their intention, is inadmissible."

But where there is no ambiguity on the face of an instrument, but a doubt is produced by extrinsic evidence, or some collateral matter out of the instrument, as, if it should appear that there were two persons of the same name, as is mentioned in the instrument, parol

(1) Phil. Ev. 364; 2 Johns. Cas. 211; 19 Johns. 134.

(2) 2 Johns. Cas. 211; Phil. Ev. 371; 13 Johns. 238. (4) 1 Stark. 256.

(6) Phil. Ev. 416; 11 Johns. 201.

(3) 11 Johns. 166.

(5) 1 Scam. 558.

evidence is admissible to explain the ambiguity, and show which person was intended.1

It is a general rule that written agreements, whether specialties or simple contracts, and whether within or without the statute of frauds, are not to be contradicted, varied, or materially affected by parol testimony; as, to show that an agreement, absolute on its face, was intended to be upon condition, to show a mistake as to the time of payment or other matter.1

3

The above rule, however, does not exclude parol evidence of fraud, or the want or failure of consideration, or the enlargement of the time for performance, or a waiver of the performance of a written simple contract, or of a bond."

5

But a receipt, although absolute in its terms, and expressed to be in full, is not conclusive, and parol evidence is admissible to show a mistake in it, or to explain or contradict it. So, parol evidence may be received to impeach the consideration of a note, but not to vary its terms. But parol evidence cannot be given of the contents of a written instrument or record, in the power of the party to produce."

8

Parol evidence may be introduced to show the understanding with which a note was indorsed, without violating the rule that a written contract cannot be contradicted by parol proof.10

Parol testimony may be given of the time of filing a deed for record.11 The law presumes that an instrument was executed the day it bears date; but parol testimony is admissible to show that it was, in fact, executed on a different day.12

VI. OF CONFIDENTIAL AND PRIVILEGED COMMUNICATIONS.

A counsel or attorney is not to be permitted to testify as to confidential communications made to him by his client.

(1) Phil. Ev. 416; 11 Johns. 201.

(2) 1 Cowen, 249; 1 Johns, 139; 3 Id. 68; 12 Id. 427-488.

This prohibition extends

(3) 1 Cowen, 249.

(4) 8 Johns. 189, 375; 18 Id. 45. Parol evidence may be admitted to show that an absolute deed, whatever may be its covenants, was intended as a mortgage, or mere security for the payment of a debt, and the grantor can have relief in equity. 3 Gil. 394.

(7) 7 Cowen, 334; 5 Johns. 58; 1 Johns. Cas. 145; 2 Johns. 378; 3 Id. 319; 8 Id. 389; 9 Id. 310. (8) 12 11. 287.

(11) 1 Gil. 575.

(9) Breese, 232; 2 Scam. 42. (10) 11 l. 575.
(12) 133 Ill. 13.

not only to the suit in which the communication is made, but to any other suit, and to any period of time.1

To entitle communications between individuals to be considered as confidential and privileged, the relation of client and attorney must exist, the party must consult the attorney in a matter in which his private interest is concerned, and make the statements to him, with the view to enable the attorney correctly to understand his cause.2

Where an attorney is consulted merely as a friend, and where neither he nor the persons communicating with him, supposes that the relation of attorney and client exists between them, the communications will not be considered as privileged.

(1) Phil. Ev. 103; 1 Greenl. Ev. Sec. 237.

(2) 3 Gil. 299.

(3) 14 Ill. 89.

CHAPTER X.

OF THE DOCKET, AND FORMS OF DOCKET ENTRIES.

I. OF THE DOCKET.

II. OF FORMS OF DOCKET ENTRIES.

1. Where the Parties appear, and the Trial is by Jury.
2. Where Suit is commenced by Warrant, the Execution
sworn out and returned not satisfied, and ca. sa.
issued against the Body.

3. Where Suit is brought on Promissory Note placed in
the hands of the Justice for collection, and the Parties
do not appear.

4. Where the Parties agree to have a Difference decided by the Justice without process.

5. Where Judgment is by Confession.

6. Where Proceeding is against Garnishee after Execution is returned, "no property found."

7. Where Administrators or Executors are Parties to a

Suit.

8. Minutes of Conviction of Witness attached for Nonattendance.

9. Memorandum to be entered where Cause is appealed. 10. Entry of Acknowledgement of Chattel Mortgage.

I. OF DOCKET ENTRIES.

By Rev. Stat. 316, Sec. 20, it is enacted, that "It shall be the duty of every justice, whenever a suit shall be commenced before him, to record in a book kept for that purpose, the names of the parties, the amount and nature of the debt sued for, the date and description of the process issued, and the name of the officer to whom such process shall be