Encyclopaedia Britannica, 11th Edition, "Evangelical Church Conference" to "Fairbairn, Sir William" / Volume 10, Slice 1

by Various

If a document is of a kind which is required by law to be attested, but not otherwise, an attesting witness must be called to prove its due execution. But this rule is subject to the following exceptions:

(a) If it is proved that there is no attesting witness alive, and capable of giving evidence, then it is sufficient to prove that the attestation of at least one attesting witness is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.

(b) If the document is proved, or purports to be, more than thirty years old, and is produced from what the court considers to be its proper custody, an attesting witness need not be called, and it will be presumed without evidence that the instrument was duly executed and attested.

Where a document embodies a judgment, a contract, a grant, or disposition of property, or any other legal transaction or “act in the law,” on which rights depend, the validity of the transaction may be impugned on the ground of fraud, incapacity, want of consideration, or other legal ground. But this seems outside the law of evidence. In this class of cases a question often arises whether extrinsic evidence can be produced to vary the nature of the transaction embodied in the document. The answer to this question seems to depend on whether the document was or was not intended to be a complete and final statement of the transaction which it embodies. If it was, you cannot go outside the document for the purpose of ascertaining the nature of the transaction. If it was not, you may. But the mere statement of this test shows the difficulty of formulating precise rules, and of applying them when formulated. FitzJames Stephen mentions, among the facts which may be proved in these cases, the existence of separate and consistent oral agreements as to matters on which the document is silent, if there is reason to believe that the document is not a complete and final statement of the transaction, and the existence of any usage or custom with reference to which a contract may be presumed to have been made. But he admits that the rules on the subject are “by no means easy to apply, inasmuch as from the nature of the case an enormous number of transactions fall close on one side or the other of most of them.” The underlying principle appears to be a rule of substantive law rather than of evidence. When parties to an arrangement have reduced the terms of the arrangement to a definite, complete, and final written form, they should be bound exclusively by the terms embodied in that form. The question in each case is under what circumstances they ought to be treated as having done so.

The expression “parol evidence,” which includes written as well as verbal evidence, has often been applied to the extrinsic evidence produced for the purpose of varying the nature of the transaction embodied in a document. It is also applied to extrinsic evidence used for another purpose, namely, that of explaining the meaning of the terms used in a document. The two questions, What is the real nature of the transaction referred to in a document? and, What is the meaning of a document? are often confused, but are really distinct from each other. The rules bearing on the latter question are rules of construction or interpretation rather than of evidence, but are ordinarily treated as part of the law of evidence, and are for that reason included by FitzJames Stephen in his Digest. In stating these rules he adopts, with verbal modifications, the six propositions laid down by Vice-Chancellor Wigram in his Examinations of the Rules of Law respecting the admission of Extrinsic Evidence in Aid of the Interpretation of Wills. The substance of these propositions appears to be this, that wherever the meaning of a document cannot be satisfactorily ascertained from the document itself, use may be made of any other evidence for the purpose of elucidating the meaning, subject to one restriction, that, except in cases of equivocation, i.e. where a person or thing is described in terms applicable equally to more than one, resort cannot be had to extrinsic expressions of the author’s intention.

V. Witnesses

1. Attendance.—If a witness does not attend voluntarily he can be required to attend by a writ of subpoena.

2. Competency.—As a general rule every person is a competent witness. Formerly persons were disqualified by crime or interest, or by being parties to the proceedings, but these disqualifications have now been removed by statute, and the circumstances which formerly created them do not affect the competency, though they may often affect the credibility, of a witness.

Under the general law as it stood before the Criminal Evidence Act 1898 came into force, a person charged with an offence was not competent to give evidence on his own behalf. But many exceptions had been made to this rule by legislation, and the rule itself was finally abolished by the act of 1898. Under that law a person charged is a competent witness, but he can only give evidence for the defence, and can only give evidence if he himself applies to do so. Under the law as it stood before 1898, persons jointly charged and being tried together were not competent to give evidence either for or against each other. Under the act of 1898 a person charged jointly with another is a competent witness, but only for the defence, and not for the prosecution. If, therefore, one of the persons charged applies to give evidence his cross-examination must not be conducted with a view to establish the guilt of the other. Consequently, if it is thought desirable to use against one prisoner the evidence of another who is being tried with him, the latter should be released, or a separate verdict of not guilty taken against him. A prisoner so giving evidence is popularly said to turn king’s evidence. It follows that, subject to what has been said above as to persons tried together, the evidence of an accomplice is admissible against his principal, and vice versa. The evidence of an accomplice is, however, always received with great jealousy and caution. A conviction on the unsupported testimony of an accomplice may, in some cases, be strictly legal, but the practice is to require it to be confirmed by unimpeachable testimony in some material part, and more especially as to his identification of the person or persons against whom his evidence may be received. The wife of a person charged is now a competent witness, but, except in certain special cases, she can only give evidence for the defence, and can only give evidence if her husband applies that she should do so. The special cases in which a wife can be called as a witness either for the prosecution or for the defence, and without the consent of the person charged, are cases arising under particular enactments scheduled to the act of 1898, and relating mainly to offences against wives and children, and cases in which the wife is by common law a competent witness against her husband, i.e. where the proceeding is against the husband for bodily injury or violence inflicted on his wife. The rule of exclusion extends only to a lawful wife. There is no ground for supposing that the wife of a prosecutor is an incompetent witness. A witness is incompetent if, in the opinion of the court, he is prevented by extreme youth, disease affecting his mind, or any other cause of the same kind, from recollecting the matter on which he is to testify, from understanding the questions put to him, from giving rational answers to those questions, or from knowing that he ought to speak the truth. A witness unable to speak or hear is not incompetent, but may give his evidence by writing or by signs, or in any other manner in which he can make it intelligible. The particular form of the religious belief of a witness, or his want of religious belief, does not affect his competency. This ground of incompetency has now been finally removed by the Oaths Act 1888. It will be seen that the effect of the successive enactments which have gradually removed the disqualifications attaching to various classes of witnesses has been to draw a distinction between the competency of a witness and his credibility. No person is disqualified on moral or religious grounds, but his character may be such as to throw grave doubts on the value of his evidence. No relationship, except to a limited extent that of husband and wife, excludes from giving evidence. The parent may be examined on the trial of the child, the child on that of the parent, master for or against servant, and servant for or against master. The relationship of the witness to the prosecutor or the prisoner in such cases may affect the credibility of the witness, but does not exclude his evidence.

3. Privilege.—It does not follow that, because a person is competent to give evidence, he can therefore be compelled to do so.