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THE



AMEKICAN JURIST,



LAWMJ^



FOR JULY AND



VOL.



1 04-



BOSl

STIilPSON AND CI.APF;
AND LILLY, WAIT, CO

PHILADi

NICKLIN AN



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CONTENTS OP NO. XV.



Art. Paob.

I. Rules op Etibence. No. IV. ... 5

Incompetency of Parties as Witnesses at Common Law.
II. Insurance — Case of Collision ... 46
ni. On the Nature and Use of a Writ of Right —

A Letter to a Gentleman of the Bar 51

rV. lNCEin>iART Pubucations 66

V. A Crime Commenced and Consummated under

Different Jurisdictions 69

VI. Gould's Pleading 74

A Treatise on the Principles of Pleading, in Ci?il
Actions. By James Gould.
VII. Angell and AifEs ON Corporations . 165

A Treatise on the Law of Private Corporations Aggre-
gate. By Joseph K. Angell and Samuel Ames.
Vm. The Citing of Authorities 111

De La Jurisprudence Des Arrets. Par A. M. J. I.
, Dupin, Avocat et Docteur en droit a L'Uni?ersit6 de
Paris.
IX. Pritate Injuries Indictable as Public Offences 118
Digest of Recent Decisions .... 126

Principal Cases in 2 Gill d& Johnson's Reports of Cases
in the Court of Appeals in Maryland; 2 Leigh's
Reports of Cases in the Court of Appeals and the
General Court of Virginia ; 1 Hall's BLeports of Cases
in the Superior Court of the City of New York.

Recent Engush Cases 178

Common Law,

Cases from 2 Bamewall d& Adolphus, Part 1 ; 1 Tjr-
whitt, Part 3 ; 1 Crompton & Jervis, Part 4 ; 2
Crompton d& Jervis, Part 1 ; 8 Bingham ; and 4
BUgh.



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CONTENTS.

Equity 186

2 Dow & Clark, Part 3.

Legislation.

Vermont 188

Massachusetts 191

North Carolina 196

Kentucky 198

Great Britain 201

Short Reviews and Notices.

Professor Hoffman's Lecture — ^The Civil Law 203
Judge Thacher's Charge in relation to publications tending

to excite the slayes of other States to insurrection 213

Chief Justice Shaw's Charge to the Grand Jury 216

Miscellany.

Sir Samuel RomUly 221

American Law in England 224

Codification 225

Bnglish Circuits . 227

New Court of Bankruptcy in England 229

Quarterly List of Law Publications 230



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CONTENTS OF NO. XVI.



^RT. Page.
I. The Pleading op Exceptions and Pboyisos in Stat-
utes 233

II. Legal Education ..... 247

Ad Introductory Lecture, delivered at King's College,
London, November 1, 1831. By J. J. Park, Esq.
Barrister at Law, and Professor of English Law and
Jurisprudence to the College.

III. Characters of Reports . . . 260

IV. Mistakes of the Westminster Review on the

suBJFCT OP American Jurisprudence . . 275

American Law Journals — Chan|fe in American Law
Books — Addresses to the Bar — Number of Judges
— Independence of the Judges.
V. Assignment by an Insolvent Debtor . . 284
VI. The Statute Laws of Tennbssee .... 298
The Statute Laws of Tennessee, of a Public and Gen-
eral Nature, revised and digested by John Haywood
and Robert L. Coobs, by order of the General As-
semUly.
VII. Law of Principal and Surety . . . 315

A Practical Treatise on the Law of Principal and
Surety, particularly with relation to Mercantile Guar-
anties, Bills of Exchange, and Bail Bonds. By Wil-
liam Theobald, Esq. of the Inner Temple.
VIII. Infants' Deeds — Void or Voidable . 327

IX. Writ of Wright 330

X. Insurance — Sailor's Wages paid to Consul . 336
XI. Cases Doubted — Assignments . . . 338
Digest op Recent Decisions . . . \ 359

Principal cases in 6 Peters's Reports of Cases in the
Supreme Court of the United States, 1832 ; 7 Wen-
dell's Reports of Cases in the Supreme Court and



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CONTENTS.

Court of Errors in New York, from May 1831 to
May 1832; 1 Minor's Reports of Cases in the Su-
preme Court of Alabama, from May 1820 to July
1826.
Rules and Orders op the Supreme Court op the United

States ^23

Legislation

New Hampshire 4524

New York 429

New Jersey 434

Ohio 437

Virginia 438

Tennessee 443

Mississippi 449

Louisiana 453

United States 461

Short Reviews and Notices

Harris's Entries by Evans 484

Dedication of Dane Law College ... 488

The London Jurist 489

Quarterly List of Law Publications 490



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THE AMERICAN JURIST.

NO. XV.



JULY, 1832.



ART. I.— RULES OF EVIDENCE.

NO. IV.

Incompetency of Parties as Witnesses at Common Law.

The evils of the various exclusionary rules depend on, and vary
in proportion to, the necessity and value of the excluded testi-
mony. In the preceding number an examination of some of
the rules of exclusion has been made, but a more important,
and if more important a more objectionable case of exclusion,
calls for examination. *Thelawof England,* . . . to avoid
all temptation to perjury, lays it down as an invariable* rule
that, nemo testis esse debet in propria causa,'* * The propriety
of this rule we now propose to examine, for however injurious
are the Ather rules of exclusion, this claims the precedence in
evil.

As before remarked, misdecision ensues whenever evidence
necessary to instruct the judge is rejected. Exclude the truth,
and he must decide erroneously. If all testimony were shut
out, that of parties and witnesses, courts of law might as well be

^ 8 Black. 871. * Invariable, ut lucus a Don lucendo.

* Nullus idoneufl testis in re sua intelligitur. — Dig. 22, 4, 10, de testibus.
Omnibus in re propria dicendi testimonii fucultatem jura submoverunt. —
Cod. 4, 20, 10, de testibus. Such is the rule oi the civil law, but like the
invariable rule of the common law, it will be found to be broken in upon by
exceptions, some of which will be noticed as we proceed. The similarity
of these two systems, on the subject of evidence, is very striking.
VOL. VIII. — NO. XV. ^ 1

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6 Incompetency of Parties as Witnesses. [July,

closed. Whenever, the testimony of plaintiff or defendant being
true and the only evidence by which the claim can be substan-
tiated, is excluded, the extreme of judicial evil is endured.
Exclude the evidence of the parties in their own favor, it being
the only existing proof, you take from them the means of ob-
taining, you deny them, justice. Whenever facts within the
knowledge of a party, and adverse to his interest, are withheld,
injustice, at the expense of the party requiring such testimony,
is done. Thus all facts in the knowledge of one or both of the
parties, all transactions without witnesses, are acted upon and
treated as if not done. A contract being made or fulfilled in the
presence of the parties, excluding their evidence, the decision is
the reverse of that required by the facts. Burthens are wrong-
fully imposed fr wrongfuDy avoided. As to whatever is done
or said in the presence of witnesses, if misrecoDected or mis-
tated, the parties are without remedy. No matter how many
witnesses, so they only happen to be parties, no matter how im-
portant the facts within their knowledge, they are at once shut
out. By excluding this testimony, fraud is encouraged, a
bounty is offered to the dishonest. Whenever facts are known
only to the parties, the honest are placed at the mercy of the
dishonest. Unfounded suits and groundless defences, by refus-
ing to question, to examine the parties, who are conscious of
their own knavery, by freeing them from the shame of manifest
falsehood, from the danger of detected perjury, are invited and
encouraged. Nay, every inducement is held up to view; suc-
cessful fraud is attended with rewards ; unsuccessful knavery is
without punishment. The parties, too, are placed at the mercy
of any witness introduced by those opposed, whether his mis-
tatements are the results of carelessness or crime. Even if this
testimony were not required, still the introduction of the parties
would serve for other and important uses. From them might be
obtained the ground of the claim or defence, the proofs by
which they are respectively substantiated, facts may be admit-
ted, all unnecessary evidence may be avoided, and delay and
expense prevented.

But contracts are not entered into with the expectation of
subsequent litigation. Of course witnesses are not preappoint-
ed — provided in advance ; or if they should be, from death or
any other cause, they may not be attainable, or if attainable, only

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1S33.] Incompetency ofPartia at WUneaes. 7

at a great and disproportionate expense. But a matter in lite
always implies parties, and those parties at hand. In the other
cases of exclusion, the number excluded is small, and their tes-
timony may be only as to few and comparatively unimportant
facts. In the case of parties, the number is coextensive with
the number of parties, and the importance of the testimony co-
extensive with the importance of the matter in contestation.
The other rules of exclusion may be evaded ; the witness, if in-
terested, may be purged of that interest by some of the half
dozen legal specifics ; he may give or take a release ; — if
convicted, his veracity may be restored by the virtues of his
Excellency's seal ; if his belief should not happen to square
with the legal orthodoxy of the time, he may repent, or, what
will answer as well, he may seem to repent, of his belief, and
the doors are unhesitatingly opened for admissioit. In all cases,
therefore, where the evidence is of sufficient importance, it can
rarely happen that it is not obtained. In the case of the party,
even though he be without interest, a mere flesh and blood John
Doe or Richard Roe,' still there is no known way by which his
testimony can be received. So far, therefore, as the number
of witnesses excluded, so far as the value of the facts within
their knowledge, and if in their exclusive knowledge, the utter
hopelessness of obtaining them elsewhere may be considered
important, so far this may be considered infinitely the most
important case of exclusion.

In comparing and weighing testimony when delivered, not
merely the character of the witness, but his opportunities for
observation, and the motives which might or might not induce
him to make the best use of those opportunities, are to be con-
sidered. The character of the witness is by no means all that
requires attention. Correctness and completeness are the only
sure preventives of error, the primary and indispensable requi-
sites of testimony, without which, however great may be the
wish, there can be but little expectation of justice. If these are
wanting, if the testimony be incorrect as to any facts, or if cor-
rect as far as it goes, it be incomplete, not embracing all the

* * The party in whose oame an action is brought cannot be a witnesf
though he be merely a trustee for some other persons.* 1 Phil. 68. The
cased, however, are contradictory. Those cited in the notes contradict the
text and each other.



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8 Incompetency of Parties a$ Wit$te$sis. [July,

facts, not affording a full and accurate view of the case, it may,
even with the most perfect integrity on the part of the witness,
be equally prejudicial, as if the effect of the most perverse and
wicked mendaci^*

To afford a correct and complete knowledge of facts, it is
not enough, that they should be stated as they seemedx to the
witness, but that they should seem to him as they really are.
For if owing to want of opportunity for observation, or deficiency
of attention, an inco/rect or incomplete knowledge of facts should
be obtained, the defect of testimony is as great, as if such in-
correctness and incompleteness were intentional, the result of
determined improbity. To see facts as they exist, and all
which exist, and in the order of their existence ; to give suffi-
cient attention at the time, so as to render those facts fixed in
the memory, that at any subsequent period, when it may become
desirable to recal them, the recollection of them may be full,
clear and distinct, — is the work of labor, of labor in the percep-
tion and recoDection ; and the more numerous and complicated
the facts, the greater the labor, and this labor will never be
incurred without an adequate motive. The original impressions
may have been clear, distinct, embracing every fact, still from
want of inducement to renew, to clothe with freshness past im-
pressions, they may have faded away, without leaving a trace,
or only a confused and incorrect reminiscence. In this view of
the subject, an absence of interest is not the only desideratum
in testimony, for the same absence of interest which affords
security against intentional misrepresentation, affords strong rea-
sons to suppose the witness may have been a careless and indif-
ferent percipient witness of the several facts which form the
subject-matter of his testimony. Hence we see how treachery
ous and mistaken are the recollections of those, who having
nothing but their indifference to the result to recommend them,
while destitute of interest, are alike destitute of distmct percep-
tion and accurate recollection, the qualities, most desirable.

How then, in these respects, is the party situated ? So far as
an accurate and distinct knowledge of the things done or agreed
to be done, of the conversation leading to, and the 6ontract enter-
ed into and completed, are of importance, the parties would evi-
dently be the best witnesses, would have the best means of know-
ing. Interested each would be, to the greatest possible extent.



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1833.] Incon^Hteney of Partiet a$ WUnesMis. 9

to the extent of the contract and the rights thereby acquired ; and
being so interested, they would obviously be the most attentive
observers of the transaction. As great as might be the import-
ance of the contract to each, so much would each feel inter-
ested in its consummation, and so far have motives sufficient to
induce him to give the attention requisite to a perfect under-
standing of its language and its import Each participating in
the matter in dispute, in the transaction under investigation,
would best know his own views and his conduct — better at any
rate than others, inasmuch as a man, who has interest enough
to make a bargain, would be more likely to know, liowever un-
willing he might be to disclose, its terms, than any unconcerned
and careless spectator. The same reasons which insure attention
to the contract, to understand its terms, would likewise insure
its full and complete recollection. Of his own business, of his
own concerns, every one is necessarily regardful ; of his own
affiiirs, as they make the most impression, so that impression
will the longest endure. Events that but slightly arrest the
attention, soon fade away. The more the attention is originaUy
interested, the oftener the facts are recalled ; and in proportion
to their importance, will be the frequency with which they will
be recalled, the more deeply and permanently they will be fixed
in the memory. But by no one, to whom they are of little con-
sequence, will this be done. As between indi£ferent and inter-
ested persons, the same acts will be differently regarded ; their
importance is relative, to the parties of the greatest, to all others
of the most trivial consequence. Strange, then, must that logic
be considered, which would anticipate equal attention from the
party who m, and from the witness who is not, affected by the
facts or events which are transpiring. Any other witness, being
without motive to regard with care what contracts might have
been entered into, being ignorant of the respective views and
wishes of the parties, will neither ascertain with accuracy nor
preserve with fidelity their several agreements and disagreements,
their admissions and denials — what was said and what was
done. Of whom, then, would you inquire but of the parties ?
Each fully and entirely understood, (or if there should happen to
have been a misunderstanding,) still they understood the con-
tract better, know more of and concerning it, and would be
more likely to remember, than any body else. Who knows so
well, who will remember so accurately ?

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10 Incompetency of Parties as Witnesses. [July,

Were a witness stationed and preappointed to observe, collect,
and treasure up the facts in a case, were he paid in proportion
to the attention given, to the fidelity of his reminiscences and the
truth of his narrations, he would clearly be more likely to
perceive, recollect, and relate facts, as they transpired, than any
witness, however disinterested. His interest would afford a
guaranty for the truth of his statements. He would be the beau
ideal of testimonial trustworthiness. To a certain extent and
for certain purposes, the party is thus interested — affords this
guaranty } for important as is the contract to him, so important
is it for him fully to understand all its essentials at the time it is
entered into, and to treasure ihem in his memory. The greater
the interest, the greater the security that all this shall be done.
So far, then, interest is evidently favorable to the cause of truth ;
and were integrity, in the delivery of the facts known, supposable,
the parties would be the best witnesses. In the absence of all
sinister interest, none so safe, none so worthy of reliance. Why
then reject them ? Are all parties under the influence of this
sinister interest? The distinctness of their original impressions,
the importance of the facts within, and the accuracy of, their
knowledge, the vividness of their recollections, and the facility
widi which they may be obtained, are strong reasons for their
introduction, notwithstanding the danger of this influence.

* In the greatest number of civil cases . . the facts at issue
must be known to the persons directly implicated, better than to
any others ; but the interest which they have in that issue, the
danger of perjury, and other reasons founded on the strongest
views of expediency, render their evidence, in the great majority
of cases, highly suspected, and therefore incompetent.' * From
a supposed want of legal integrity, says Gilbert, parties are ex-
cluded. Indeed a sort of incongruity has been assumed as
existing between the stations of parties and witnesses. The
very usage of language, the definition of witness, * an indifferent
person to each party sworn to speak the truth, the whole truth,
and nothing but the truth,' * have sanctioned this supposed in-
congruity, so that, to most lawyers, the admission of the party to
testify would be regarded as a judicial heresy of no ordinary
magnitude. We shall endeavor to show, not merely that there

* Glassford on Evidence, 827.
« M'Nally Evidence, 1 vol. p. 1.



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1832.] Incompetency of Pariiei as Witnesses. 11

is no such incongruity, but that there is the most perfect pro*
priety, in permitting, that those who are percipient should be uar-
rating witnesses, whatever may be their relation to the cause ;
that, if the facts *are better known to them than to others,' how-
ever * highly suspected,' they should not therefore be considered
'iDCompetent.'

The testimony of a party delivered, or which may be required
to be delivered, may be divided into two portions, that favorable
to and at the instance of, and that adverse to the interests of, the
party testifying, and of course called for by the opposing party.
Accordingly, as the testimony extracted belongs to one or the
other of these divisions, will vary the reasons assigned for exclu-
sion. If the testimony be favorable to and at the instance of the
party testifying, a presumed want of mtegrity, the danger of
perjury,* the impolicy of trusting juries with such suspicious
testimony, are given as reasons for refusing to hear. If the
testimony be adverse to the interests of the party, it will never
have been introduced by him whose interests are thereby dis-
served, but will have been called for by the opposing party. In
this case the fear of perjury,* (if the party should conclude to
serve bis own interests regardless of truth) if not the hardship
of calling a party to charge himself, seem to have been consid-
ered satisfactory reasons for each branch of the rule. It may
be remarked that the reasons in one, do not apply in the other
case : the danger of perjury, the hardship of disserving one's
self, do not e?ist together. The testimony being favorable,
however great the danger of perjury, however deceptions it
may be, there can be no hardship in giving it utterance : being
adverse, however great may be the hardship, there can be no
danger, no well grounded danger, that an individual will know-
ingly testify falsqly to his own injury, and of course no danger
that such testimony will lead to deception. Each case, with its
several reasons, will receive separate examination and illustra-
tion.

When the party, at his own^ instance,* and to aid himself, is

' 3 Starkie, 1161.

' The fear of perjury, and the propriety of oaths, will be subsequently
examined.

' The rule of the civil law coincides in this respect with the common law.
At his own instance no one is heard ; but at the instance of his antagonist,
any one, as in equity.

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12 Incompetency of Parties (u W%tnes$es. [July,

introduced, a supposed want of btegrity, a danger of perjury is
considered a sufficient reason for refusing to hear him. The
assumptions are, that the interests of the party testifying are
adverse to the truth, that to promote such interests he will tes-



Online LibraryCatholic University of AmericaThe American jurist and law magazine, Volume 8 → online text (page 1 of 51)