primogeniture, &c. hiftories compiled by writers of credit, § 2. WRITS near that age when the facts happened, are probative, if PRIVATE. they be not contradicted by other hiftorians as ancient, and Histories. of equal authority *. In confidering how far histories are evidence, the English Histories general, lawyers make a diftinction, whether the fact be of a general how far or particular nature? Camden's Britannia was offered in evi- evidence of general dence to prove a particular cuftom, but refufed; for the facts: court held that a general history might be given in evidence to prove a matter relating to the kingdom in general, because the nature of the thing requires it, but not to prove a particular right or custom ". SURVEYS, taken on public occafions, are evidence to afcertain the rights even of individuals not named in them. Stair, book iv, tit. 42, § 16; univerfity college in Oxford, one of Etfk. Ibid. b So, in the cafe of St. Katherine's Hofpital, Hale, c. i, "allowed a "chronicle to be evidence of a parti"cular point of history in Edward "the Third's time: fo a year book "may be evidence to prove the courfe "of the court. And in this cafe it was admitted, that heralds' books are good evidence as to pedigrees, "and parish registers as to births and marriages, upon the nature of the thing. But in the exchequer, the queftion being, whether the abbey "de fentibus was an inferior abbey or "not? Dugdale's Monaftion was refuf*ed for evidence, because the original "records might be had." (1 Salk. 281,7 W. Stainer and the burgeffes of Droitwich. So in the cafe of Cockman and Mather, E. 13 G. On a trial at bar, concerning the right of visiting the the issues was, whether king Alfred c Peake's Law of evidence, p. 55. of particular facts. WRITS In England, fince the reversal of the attainder of AlgerPRIVATE. non Sydney, fimilitude of hands feems not to be held as Similitude evidence in any criminal case, whether capital or not capital; but the witness saying that he was well acquainted with his writing, and knew it to be the party's, is evidence. of hands. In general, the witness should have gained his knowledge from his having feen the party write, but under fome circumstances that is not neceffary; as where the handwriting to be proved is of a perfon's refiding abroad, one who has frequently received letters from him in a course of correspondence, would be admitted to prove it, though he had never seen him write ©. SIR GEORGE MACKENZIE has intimated his opinion, that fimilitude of hands is not such proof as the judge can properly rely on, but a ground of presumption only at the best. "And perhaps the point must be yielded with respect to "those fituations, if fuch fhall ever happen, where the pro"fecutor trufts to fimilitude of hand alone, not ftrengthen"ed with any other likelihood or circumstance of presump❝tion in the cafe, as if a person be accused of treason or se"dition, on the fingle evidence of an unfigned writing "found in the cuftody of fome one who is a stranger to "him. But it is no lefs fit to be confidered, on the other "fide, that men do not call witneffes to the execution or "delivery of writings of a criminal nature; and hardly in * Burn, tit. Evidence. So where the antiquity of the witness who had examined the patish books, in which was the fame perfon's name, was permitted to swear to the fimilitude of the handwriting; for it was the best evidence in the nature of the thing; for the parish books were not in the plaintiff's power to produce, Ibid. WRITS "any cafe will it happen that the evidence arifing from the § 2. “likeness of hand is not either strengthened or difcredited Private. "by the other particulars of the cafe "." ARTICLES WITH THE CLERK OF III. Another fort of evidence in criminal matters consists $ 3. in exhibition of articles in the hands of the clerk of Court, EXHIBITED such as the staff or cudgel by which a man has been attacked, or the bloody cloaths, or bloody knife, or the ftolen COURT. goods, or false keys; any of which may either be articles of evidence themselves, or may become fuch by what is depofed in reference to them by the witneffes in the trial ". BUT no article can be used as evidence at the trial, which Defcription in the has not been defcribed and given notice of in the libel, and libel. which has not been lodged with the clerk of court in fufficient time before the trial, for examining and infpecting it . a Hume, vol. iv, p. 210. "Thus, if writings are found, though unsigned, in the pannel's "own poffeffion, and referable to "tranfactions, in which he can be "fhewn otherways to have had "an active concern, or if letters "figned with his name, are dif" covered in the poffeffion of his fa"miliar friend, and answers thereto, "addreffed to him, are found in his "own poffeffion; or if the minutes "are produced of the proceedings of "a meeting, whereof the pannel was "a member, and to which he is "proved to have been chofen fecre"tary or clerk; and in any of these "cafes, if his hand be fworn to by "a competent number of credible " perfons, who have cause of know. 'ledge on_that_head; this feems to “be fuch a proof as there is no found ❝reason for distrusting. Accordingly, " in the trial of Campbell of Burnbank "(March 29, 1721), for falsehood and "confpiracy, where the libel refted 'in a great measure on a writing in "which Campbell, for a fum of mo"ney, received from Muschet, obli"ged himself to produce two affi"davits of the adultery of Margaret "Hall, Mufchet's wife; the authen"ticity of this material document was proved chiefly by fimilitude of «hand. The pannel's handwriting " was established in fome measure "by the like means, in the trial of "James Stein for bribery; as also in "the trials of Skirving and others "for fedition, in 1793 and 1794. b Hume, vol. iv, c. 14. c In the noted cafe of Smith and Brodie, August 1788, the libel gave notice that a bank note for 51. was to be ufed in evidence against them; but in this purpose the profecutor ARTICLES $3. Towards the better telling of their story, witnesses may exhiEXHIBITED bit the articles of which they are speaking: for example, one who has got poffeffion of the staff with which he was affaulted, may fhew it when he depones, that the violence which he fuffered may be better understood; but if no notice has been taken of this inftrument in the libel, he cannot leave it with the clerk, to be fworn to by other witneffes; whereby the staff itself would become part of the proof; and a substantive article of evidence against him a. $4. OATH OF § IV. "PROBATION by oaths of parties," fays lord Stair', "hath a moral ground, and a fcriptural warrant. The for"mer is, that as men are obliged to perform all duties to"wards men, fo they ought not to refuse to acknowledge "the fame, so that the other party be obliged to acquiefce, "and not further to ftrive or contravert. The scriptural "warrant is, that an oath for confirmation is the end of all 'firife; and therefore, as men are obliged to remove the "ground of ftrife, so they are obliged to give their oaths, "when these are neceffary, for removing it. Strife doth "comprehend, not only contending by force, but contend"ing by law." No man's oath is evidence in his own favour, unless touching those particulars which are referred to it by the adverfary; who must previously not only renounce every other mode of proof, but (if required) swear that he knows of no probative writing by which he may make good his plea". Should the parties mutually refer the point at iffue to the oath of each other, it lies with the difcretion of the judge was disappointed; because the note a Ibid. b Book iv, tit. 45. Erik, book iv, tit. 2, § 3. to make him depofe who appears to have had best opportunity of knowing the facta. $4. OATH OF VERITY. THE oath is no evidence against third parties; not (Mr. fect third Erfkine thinks) even against correi, or conjunct co-obli- parties. gants b. Correi. THE oath is evidence against the referrer, only fo far as Intrinsic. it is intrinfic. Whatever is extrinfic in it is difregarded as the mere averment of a party. Any quality, or fpecial limitation, which cannot be feparated from the other parts of the oath, is called intrinfic; when it may and ought to Extrinsic. be feparated, it is called extrinfic. All qualities are intrinfic which relate to the point referred in the oath; or, as Dirleton expreffeth it, are inherent in the thing in dispute; or, to ufe lord Kames' words, all facts and circumstances that refolve into a denial of the libel; because if the libel be not proved, an abfolvitor follows; or whatever are proper cross interrogatories to a witness; for had the pursuer taken a proof by witneffes, it would have been competent to the defender to put crofs interrogatories, and the latter must not be cut out of his privilege by the former being chosen as the only witness; or if an agreement be referred to the oath of the defendant, every circumftance is intrinfic that imports it to have been altered or paffed from; for fuch circumftance is in effect pars ejufdem negotii. But where an agreement is fulfilled and brought to its final conclufion, no after alteration adjected to the oath is intrinfic. Thus, where a bargain for a horse, with delivery, is referred to the defendant's a Ibid. Thus, for example, if a promise to pay a determinate fum be refer"red to the defender's oath, and he "depofe that the promife was made "under a condition not yet perform Vol. I. P |