Evidence, Witnesses, and Proof
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1744 |
| Date | 01 January 1744 |
| Court | High Court of Chancery |
English Reports Citation: 21 E.R. 1005
HIGH COURT OF CHANCERY
[223] CAP. XXVIII. evidence, witnesses, and proof. (A) Of the Sufficiency and Disability of a Witness. (B) What will be admitted as Evidence, and will amount to sufficient Proof. (C) Where parol or collateral Evidence will be admitted to explain, confirm, or contra- dict what appears on the Face of a Deed or Will. (D) Of examining Witnesses, exhibiting Interrogatories, publishing and suppressing their Depositions. (E) Of examining Witnesses de bene esse, and establishing their Testimony in per- petuam rei memoriam. (A) Of the sufficiency and disability of a witness. 1. A. exhibited a Bill to be relieved touching an Annuity charged on the Estate of the Defendant's Wife, and examined his Brother as a Witness for him, who had a like Annuity charged on the Estate by the same Deed; and though it was urged, that he had Satisfaction made to him in lieu of it, and had released his Right; yet it not appear ing by any Proof in the Cause, the Court put off the Hearing, arid gave the Plaintiff Liberty to examine Witnesses, to prove that the Brother had released the Annuity before he was examined as a Witness in the Cause. Trin. 1700, Culpeper and Fairfax, 2 Vern. 375. 2. A Witness was examined whilst she was interested, before the Hearing; and the Cause being heard, and decreed to an Account, she was re-examined after the Hear ing, before the Master on the Account, having first released her Interest; and it was objected that she ought not to be read, for having been examined whilst interested, 1006 EVIDENCE, WITNESSES, AND PROOF 1 EQ. CA. ABE. 224. [224] and her Depositions published, she was thereby engaged, and almost under a Necessity of standing to what she had before sworn, and could not be free to retract or contradict it; but the Lord Keeper over-ruled the Objection. Mich. 1704, Callow and Mime, 2 Vern. 472. (Free, in Chan. 234, S. C. under the Name of Callow and Mince.) 3. If a Bankrupt has assigned and released all his Estate and Bight to the Assignees, he may be examined as a Witness for them. [Phillips v. Willcox,] 2 Vern. 637. Per Curiam : A Legatee of a small Legacy, as 5s. to a private Person, or £5 to a Nobleman, may be a Witness for the Will. [Sutton Coldfield v. Wilson,] 1 Vern. 254. (Vide 25 G. 2, c. 6.) 4. Upon an appeal from the Eolls, it was objected to the Evidence of one Norris, as a Witness examined in the Cause, and read at the Hearing at the Rolls, that since that Hearing, in Answer to a Bill exhibited against him, he had confessed, that on the Day on which he was examined as a Witness, he took a Bond of the Plaintiff, that if the Plaintiff recovered the Estate in Question, he would convey Part of it to the said Norris ; and per Lord Keeper, Holt, Ch. Just., and Powel, Just., this Answer must be read to take off his Evidence as a Party interested. Mich. 1704, Needham and Smith, 2 Vern. 463, 464. And per Lord Keeper, though a Witness is examined an Hour together at Law, if in any Part of his Evidence it appears that he was a Party interested, the Court will direct the Jury, that he is no Witness, nor any Regard to be had to his Evidence. 5. Several Persons were examined as Witnesses no Ways concerned in Interest, and the Cause heard, and Issues directed to be tried, but the Trials were not carried on, and the Cause slept many Years, and after abated; and then those Persons who had been examined as Witnesses, became Heirs at Law, and thereby interested in the Matter ; the Cause was revived and reheard, and the same Issues directed to be tried ; and the Persons who had been so examined (being now Plaintiffs) prayed to have an Order, that their Depositions taken when they were disinterested, might be read as Evidence at Law for themselves; and my Lord Keeper ordered it accordingly; and likened it to the Case, where one who is the only, or only surviving Witness to a Deed becomes afterwards the Party interested, his Hand may be proved at Law; so if a Witness to a Deed becomes blind. Then the Cause proceeded to Trial at Bar in C. B. where the whole Court held these Depositions could not be read without Consent, the Parties being living; but the Defendant consented, and had a Verdict for him ; and the Plaintiff obtained a new Trial, and then would have had the same Order; but my Lord Keeper said, since the Judges had resolved otherwise, he could not take upon him to make that Evidence which was not, and therefore only ordered they should be read in Evidence, as by Law they might. Trin. 1702, Holcroft and Smith. (2 Freem. 259, S. C. but not S. P. Vide Eq. Ca. Abr. Pt. 2 [413].) 6. But where one was examined as a Witness when disinterested, and afterwards became intitled to the Estate in Question, the Court of Chancery allowed his Depositions to be read, vide [Gosse v Tracy] 2 Vern. 699, and there said, that the Reason why the Deposition of a Witness, taken whilst unconcerned in Interest, could not be made Use of at Law, was founded on that Rule of Law, viz. that where the Witness is living, and might be produced at the Trial, the Deposition of such Witness shall not be read. [225] 7. A Co-Plaintiff, though but a Trustee, cannot be examined as a Witness for the other Plaintiff. [Phillips v. Bucks,] 1 Vern. 230. But one Defendant may be examined as a Witness for another. [Windham v. Richardson,] 2 Chan. Ca. 214, S. P. (Vide the Case of the Mayor and Aldermen of Colchester, Eq. Ca. Abr. Part 2, 1 P. Wms. 595, S. C.) 8. Plaintiffs cannot examine each other as Witnesses in the Cause, because, if the Cause miscarries, the Plaintiffs will be liable to Costs, and therefore their Swearing is to exempt themselves ; and it is their own Choice that they are made Plaintiffs, for without their Consent they could not; but Defendants are forced into the Cause; and if their being made Parties should absolutely invalidate their Testimony, it would be in the Power of any one who had a Mind to oppress another, to deprive him of his Defence, by making the most material Witnesses Defendants in the Suit; and therefore any of the Defendants to a Suit may be examined as Witnesses, saving just Exceptions to their Credit, &c. Mich. 1715, Casey and Eeachfield, agreed per Curiam in Can'. (Free, in Chan. 411, S, C. Gilb. Eq. Rep. 98, S. C. in totidem verbis with Free. in Chan.) 1.EQ..CA. ABB.,226. EVIDENCE, WITNESSES, AND PROOF 1007 9. A Commissioner may be a Witness, but lie ought to be examined before any other Witness. [Bright v. Woodward,] 1 Vern. 369. 10. In a Suit to set aside a hard Award, the Arbitrator or Umpire, who made the Award, may be examined as a Witness. Vide Brown v. Brown, 1 Vern. 159. 11. A Bond of £400 Penalty was entered into; and the Question was, whether it was for the Benefit of the Corporation of or for the Defendant; and the Witnesses for the Plaintiffs being all Members of the Corporation, it was objected, that they could not be read, they swearing for their own Benefit; which Exception was allowed ; but it appearing that the Defendant had cross-examined some of the Plaintiff's Witnesses, not only to Questions barely whether they were of the Corporation, or not, but to other Questions, which tended to the Merits of the Cause; the Lord Keeper declared, that made them good Witnesses, though they were Members of the Corporation; and upon their Evidence it was decreed for the Plaintiffs. Mich. 1684, the Corporation of Sutton Coldfield and Wilson, 1 Vern. 254. And per Lord Keeper, a Corporation ought to have a Town-Clerk and Under-clerks, that are not Freemen, that they may be competent Witnesses, upon Occasion ; and he said that he thought it very hard in the Case of the Water-bailage of London, that no one Freeman of the City, though it was not 6d. Concern to him, could be admitted as a Witness. But there indeed the Fee was in Question; and here being only a bare Sum of £200 in dispute, he thought that not considerable enough to take off a Man's Testimony. 12. The Suit being touching the Loss and Misapplication of a Sum of Money given for the Benefit of the Parishioners, the Question was, whether any Inhabitant of the Parish ought to be admitted as a Witness. For the Plaintiff it was insisted, that the Interest was so minute and inconsiderable, that it could not be presumed to influence the Witness, or bias him in his Evidence ; but per Curiam, the Cases where the Party was concerned in Interest, though never so small, have always prevailed; and it was so resolved, upon great Debate, in the Case of the City of London, concerning the Water-Bailiff. Pasc. 1694, Dodswell and Nott, 2 Vern. 317. (Vide the Case of The Attorney General and Wyburgh & al\ Eq. Ca. Abr. Part 2, S. P. 397.) But Parishioners may prove a Devise to the Use of the Poor of the Parish for ever. Vide Townshend v. Eow, 2 Sid. 109, tit. Burr. Mansf. 421. 13. If an Executrix to a first Husband marries a second, and a Bill is exhibited against them to discover a Trust, and they in their Answers disagree in the Matter, the Wife confessing what the Husband denies, and what the Plaintiff can prove only by one Witness, the Plaintiff can have no Eelief; for one Witness is not suf-[226]-ficient against the Husband's Answer; and the Wife's Confession will not avail, for she can be no Witness against the Husband. [Anonymous,] 2 Chan. 6a. 39. * 14. So where the Plaintiffs, who were Infants, and the Children of the Defendant's Wife by a former Husband, exhibited a Bill to have an Account of the Estate left them by their Father, and of the Produce thereof; and upon the Hearing it...
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