CHAPTER III.

Parol Evidence.

1. In what cases admissible.
2. Competency of witnesses.
3. Credibility of witnesses.
4. Examination of witnesses.

5. Compelling attendance of witnesses.
6. Their fees and expenses.

7. Privilege of witnesses from arrest.

1. IN WHAT CASES ADMISSIBLE.

Parol evidence is inferior to written evidence and cannot, in general, be received instead of, nor be adduced in contradiction to written evidence; though it tend to show the real intention of the parties ;(a) nor to show the invariable usage of trade;(b) or custom of the country ;(c) in opposition to the terms of a written instrument. But a latent ambiguity may be explained; that is, where upon the face of the instrument every thing seems right and clear till the proof of some fact renders the meaning uncertain; and then the law permits the doubt to be removed by evidence of a like kind; as where one devises to her cousin C. J. and there were two of that name. (d) So, where from the terms of a deed the intention as to its nature is equivocal, evidence is admissible to show the intent and also that some act was done further than that stated in the deed, though forming part of the same transaction. (e) So, to show that a written contract, purporting to be made between A. and B., was in fact made by B. as agent for a third person. (f) But a patent ambiguity, viz. that which is apparent on the face of the instrument cannot be so explained.(g)

Parol evidence cannot be admitted to contradict the terms of a deed;

(a) 5 Co. 26.

(b) 6 T. R. 320.

(c) 2 Barn. & Ald. 746.

Peake Ev. 112.

(e) 8 T. R. 379. 1 Phil. Ev. 544.
(f) 7 Taunt. 785. 1 Phil. Ev. 542.
(g) Matt. Dig. 123.

as to show that a lessee is to pay a given sum to the ground landlord, where the lease stipulates for the payment of a sum certain to the lessor.(h) Nor to alter the legal construction of an instrument;(i) as where no mention is made in an agreement when it is to take effect, the law adds the time viz. immediately, and parol evidence is not admissible to show the contrary.(k) Where no consideration is expressed in an instrument it seems doubtful whether any can be proved.() In a settlement case parol evidence was admitted to show that the consideration was £30, instead of £28 as expressed in the conveyance.(m) Parol evidence of usage or custom is often admissible to explain the meaning of parties when not definitively expressed on the face of the written instrument;(n) and especially in mercantile contracts, to show the sense in which, according to the usage and custom of merchants, the contract was made.(0) So, the construction of ancient charters, deeds, &c. may be asserted by parol evidence of usage.(p) And such evidence is always admissible to prove a fraud. (q)

As to the cases in which parol evidence may be received as secondary evidence of a written instrument, where the written instrument is proved to have been lost or destroyed, or in possession of the opposite party, see post, Ch. IV. Secondary Evidence.

2d. COMPETENCY OF WITNESSES.] There are two kinds of exceptions to witnesses; to their competency and to their credibility. Objections to the competency of a witness go to prove that he cannot be sworn at all, on account of some inherent incapacity or defect; exceptions to the credit of a witness are such as do not at all disable him from being sworn, but merely affect the degree of belief which the jury will give to his evidence.(r) Thus in the case of kindred, no relationship except that of husband and wife, can disqualify a man from being examined; though it may induce such a suspicion of partiality as greatly to lessen the value of his evidence.(s) So where a person admits himself to have sworn falsely on the same affair, and attributes it to the persuasion of the defendant, such an admission does not render the witness incompetent, though it may evince him to be wholly unworthy of credit. (t) In many cases a

(h) Peake Ev. 122.

(i) 3 Camp. 426. 5 Barn. & Cress. 108. 1 Maule & Sel. 21, 147.

(k) 8 Dow. & Ry. 548. 5 Barn. & Cress. 108, S. C.

(1) See 1 Rep. 176, a. 1 Ves. 128. 3 Bing. 112. 5 Id. 34. 3 T. R. 474. (m) 3 T. R. 474.

(n) Palm. 211. Dougl. 201. 2 B. & Ald. 746.

(0) See 2 Salk. 443.

(p) Matt. Dig. 123.

(9) Id. ib. 3 Barn. & Cress. 623. 8 T. R. 147. 2 Peer Wms. 203.

(r) 1 Chit. Cr. L. 588, 9.

(s) 2 Hale, 276.

(t) 11 East, 309.

person may be credible where he is not competent, and competent where he is not credible.(u)

It is the province of the court to determine whether a witness is competent or the evidence is admissible. And whatever antecedent facts are necessary to be ascertained for the purpose of deciding the question of competency or admissibility of evidence, as for example, whether a child understands the nature of an oath—or whether the confession of a prisoner was voluntary-or whether declarations offered in evidence as dying declarations were made under the immediate apprehension of death-these and other facts of the same kind are to be determined by the court and not by the jury.(v)

The general rule is that all persons are competent to give evidence. Incompetency is the exception, and may arise either from 1. Want of discretion; 2. Defect of religious belief; 3. From interest; 4. From relationship; 5. From infamy; 6. From privileged communications.

1st. Incompetency from want of discretion.] Inability to understand the obligations of an oath is the first objection to the competency of a witness which we shall notice. For this reason a person insane cannot be admitted to be sworn while he is in that condition.(w) But he may, if he sufficiently recover his understanding in a lucid interval.(x) A person deaf and dumb from his birth, and who understands the meaning of signs and has a due sense of moral obligation, may be examined; and a person accustomed to converse with him may be sworn to interpret the tokens he uses in his replies.(y) Or, if the witness is able, he may write his answers.(z)

A person in a state of intoxication is inadmissible, on the ground of a want of discretion. (a)

An infant of any age may be a witness, if he appears sufficiently to understand the nature and moral obligation of an oath; for the competency of infants depends not so much upon age as understanding.(b) And therefore a child under seven years of age has been examined upon oath, when he appeared to understand its nature. (c) And the testimony of an infant of seven years, corroborated by circumstances, has been held sufficient to justify a conviction for a rape.(d)

Whether the infant be competent, is a question for the court to decide.(e)

But a child under fourteen years of age is presumed incapable of testifying, and capacity must be shown.(ƒ)

If the infant is not of sufficient discretion to be sworn, no evidence can be given respecting his assertions.(g)

2d. Incompetency from defect of religious belief.] The test of a witness's 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.(h) Within this rule are comprehended those who believe future punishments not to be eternal. (i) All persons who believe in the existence of a God and in future punishments by him, either in this world or in the next, are competent witnesses. (k) But it is not necessary that a witness should be a christian, or even believe in the Old Testament, in order to render him competent. Thus christians of all sects and denominations, Turks, Moors, and other Mussulmen, Gentoos and the like, may be witnesses. (1) But a man wholly without religion, and having no belief in the moral obligation of an oath, shall not be received to give evidence in any case whatever. (m)

By the revised statutes every person believing in any other than the christian religion shall be sworn according to the peculiar ceremonies of his religion, if there be any such, instead of the mode prescribed in ordinary cases.(n) And the court may inquire of a witness what are the peculiar ceremonies observed by him in swearing.(0)

A witness cannot be compelled to declare his belief in the existence of a Supreme Being, or that he will punish false swearing; but this may be proved by other witnesses. (p) A person apparently of weak understanding, however, may be examined as to the extent of his religious knowledge.(g) After the incompetency of the witness from defect of religious belief is satisfactorily established, by proof of his declarations out of court, he will not be permitted to deny or explain such declarations or his opinions, or to state his recantation of them, when called to be sworn. But he may be restored to his competency on giving satisfactory proof of a change of opinion before the trial, so as to repel any presumption arising from his previous declarations of infidelity.(r)

3d. Incompetency from interest.] It is a general rule of evidence, not

(f) 2 Ten. Rep. 80.
(g) 1 Chit. Cr. L. 590.

Ev. 94, 1 Leach, 110.

Roscoe's Cr.

(h) 2 Cowen, 431. 2 R. S. 408, § 87. (i) Cowen & Hill's Notes, 62. (k) 2 Cowen, 432, note a. Id. 572. 15 Mass. R. 184.

(1) Arch. Cr. Pl. & Ev. 144.

(m) 1 Atk. 44.

(n) 2 R. S. 408, § 86.
(0) Id. ib. § 89.

(p) Id. ib. § 88. 18 John. 98. 2 Cow

en, 431. 4 Day, 51.

(q) 2 R. S. 408, § 89.

(r) 18 John. R. 98. 4 Day, 51.

to admit the testimony of a witness who is to be a gainer or loser by the event of the cause, whether directly and immediately, or consequentially only. (s) The interest to disqualify, must be some legal, certain and immediate interest in the event of the suit, or in the record as an instrument of evidence available on future occasions, in support of the witness's own interest.(t) A liability to a remote action or prosecution, will not make the witness incompetent. (u) Nor will a witness be excluded because he stands in the same situation as the party in whose favor he is called ; (v) or because he may have wishes or a strong bias on the subject matter of the proceeding, or may expect some benefit from the result of the trial. Such circumstances only affect his credibility.(w) The courts have resolved, in a variety of cases, that questions of interest shall, as far as possible, go to the credit rather than to the competency of a wit ness.(x)

A witness who believes himself interested, but is not so in fact, is competent; as one who believes himself to be under an obligation of honor to indemnify bail. (y) Nor does an actual honorary obligation constitute a disqualifying interest in the witness. (z)

Where a person is equally interested in the event of the trial whether the verdict be for the plaintiff or defendant, so as upon the whole to make him indifferent, he will be competent to give evidence for either party. (a) If a person makes himself a party in interest for the purpose of depriving a party to the suit of his testimony, this ought not to exclude him.(b)

A person entitled to a reward upon the conviction of the defendant, is not thereby rendered incompetent to give evidence against him; whether the reward be given by proclamation, by statute, or by a private person.(c) But informers, who are entitled to a part of the penalty, are incompetent witnesses to support a conviction ; (d) where the penalty is recoverable by the indictment itself. (e) But it would seem otherwise, where a distinct suit for the penalty is necessary.(ƒ)

(z) Id. 54. 8 John. 462. 9 id. 219. 4 Wend. 292. 3 Pick. 96. 6 Conn. R. 365.

(a) Peake's Ev. 169. 1 Phil. Ev. 52. (b) 1 Phil. Ev. 137.

(c) Id. 119, 127. 10 Mod. 193.

(d) 1 Chit. Cr. L. 597.

(e) Roscoe's Cr. Ev. 109.

(f) Id. 108. 9 Barn. & Cress. 557.