2. Proof of wills. were not together at that time, evidence by one witness that at the time named the one was at London, and by another witness that the other was at York, would be sufficient proof of the assignment of perjury." And, lastly, in R. v. Mayhew (s), where the defendant, an attorney, was indicted for perjury in an affidavit made by him to oppose a motion to refer his bills of costs for taxation; one witness was called to prove the perjury, and in lieu of a second it was proposed to put in the defendant's bills of costs which he had delivered: on this being objected to, Lord Denman, C. J., said, "I have quite made up my mind that the bill delivered by the defendant is sufficient evidence; or that even a letter, written by the defendant, contradicting his statement on oath, would be sufficient to make it unnecessary to have a second witness." Sir W. D. Evans tells us that he recollects in his time having seen this principle acted on in practice (t): though there is an old case in Siderfin to the contrary (u). Since the former edition of this work, the question as to the nature of the evidence in perjury was fully discussed before the Court of Criminal Appeal, in a case of R. v. Boulter (x), which however disposed of it on the special circumstances, without laying down any general principle. Some light may possibly be thrown on the subject by the decisions in the Ecclesiastical Courts, which, in obedience to the rule of the civil law, require two witnesses in matters where they have exclusive jurisdiction (y). § 573. The next exception is on the proof of wills attested by more than one witness, in the manner formerly required by the Statute of Frauds, 29 Car. II. c. 3, (s) 6 C. & P. 315. (t) 2 Ev. Poth. 280. (u) R. v. Carr, 1 Sid. 419; Resol. 3. (x) R. v. Boulter, 2 Den. C. C. 396. (y) See Simmons v. Simmons, 1 Rob. Eccl. R. 566; 11 Jur. 830; and the cases there referred to. s. 5, and now by the 7 Will. IV. & 1 Vict. c. 26, and 15 & On witnesses. § 574. Another exception to this rule is in the "Trial 3. Trial by by witnesses," or, as our old lawyers expressed it, "Trial by proofs (b),"-expressions used in our books to desig (z) See Part 2, ch. 3, sect. 1, § 216. (a) Tayl. Ev. § 1330. See also 2 Ph. Evid. 463, 10th Ed.; Bowman v. Bowman, 2 M. & Rob. 501. even denied, we propose in this (b) The existence of this exception to the general rule of evidence having been doubted, and nate a few cases which are tried by the judges instead of a jury. It is not easy to fix precisely what these A. D. 1829), Shotter v. Friend, Carth. 142, is cited as a ground for its rejection, where Lord Chief Justice Holt is reported to have said, although the case did not turn on the point now under consideration, "it was not necessary in any case at common law, that a proof of matter of fact should be made by more than one witness; for a single testimony of one credible witness was sufficient to prove any fact; and the authorities cited in 1 Inst. 6 b, did not warrant that opinion, which was there founded on them." In the report of the same case in 1 Shower, 158, 172, by the name of Shatter et ux. v. Friend, the Lord Chief Justice is mentioned to have cited, in support of his position, F. N. B. 97, and 23 or 33 Hen. VI. 8 (probably meant for 33 Hen. VI. 8, pl. 23); but on the other hand, Eyres, J., is represented as saying (p. 161), that "where trial is not by jury but per testes, there must be two in all cases" so that the dicta in that case go far to neutralize each other. A third report is to be found in Holt, 752, which, both in the name of the case and its substance agrees with that in Carthew. The authorities cited by the Lord Chief Justice at the utmost only shew that two witnesses were not required to prove the summons of the tenant in a real action, if indeed they go so far; but they certainly do not in any degree touch the general question, and his attack on those cited in the 1 Inst. seems founded on what is either a misreference or a misprint. That passage (Co. Litt. 6 b) runs thus, "It is to be known, that when a trial is by witnesses, regularly the affirmative ought to be proved by two or three witnesses, as to prove the summons of the tenant, or the challenge of a juror and the like. But when the trial is by verdict of twelve men, there the judgment is not given upon witnesses or other kind of evidence, but upon the verdict; and upon such evidence as is given to the jury, they give their verdict." For this, in, we believe, all the editions of Coke upon Littleton, certainly both in that of 1633, and the last one of 1832, are cited, Mirror, c. 3; Plowd. 10; Bract. lib. 5, fol. 400. Now the two last of these are wholly irrelevant; and were most probably meant for Plowd. 8, and Bract. lib. 5, fol. 354 b, which are cited by Sir Edw. Coke in 3 Inst. 26, when speaking of two witnesses in cases of treason, and are certainly some authority in his favour; and his remaining quotation, the Mirror, c. 3, s. 12, expressly states it to be a good exception of summons, that the party "was not summoned, or not reasonably summoned, or that he received the summons by no freeman, or but by one freeman." Many other authorities might cases are. About one, indeed, there can be no question, viz. where on a writ of dower the tenant pleads that the husband of the demandant is still living (c); and Finch (d), be cited to establish the position that two witnesses are required on a trial by witnesses; and what is more important, they generally agree in the reason for this, namely, the absence of a jury. Thus Lord Chief Baron Gilbert says, "There are some cases in the law where the full evidence of two witnesses is absolutely necessary; and that is, first, where the trial is by witnesses only, as in the case of a summons in a real action, for one man's affirming is but equal to another's denying, and where there is no jury to discern of the credibility of witnesses, there can be no distinction made in the credibility of their evidence, for the court doth not determine of the preference in credibility of one man to another, for that must be left to the determination of the neighbourhood; therefore where a summons is not made and proved by two witnesses, the defendant may wage his law of non-summons, &c." Gilb. Ev. 151, 4th Ed. The authority of Coke has been already referred to, and in another part of the 1st Inst. (viz. 158 b) he tells us, that the proof of the summons of the jurors to try an assize must be made by two summoners at the least, for which he cites Mirr. c. 2, s. 19; Bract. lib. 5, fol. 333, 334; Fleta, lib. 6, c. 6; and Britt. c. 121. The first of these is irrelevant, and probably a mistake for Mirr. c. 3, s. 12, already mentioned; the other three are all to the effect that there must be two summoners. In Reniger v. Fogassa, H. 4 Edw. VI.; Plowd. 12, Brooke, Recorder of London, says, arguendo, "It is true that there ought to be two witnesses at least, where the matter is to be tried by witnesses only, as matters are in the civil law." So in 2 Ro. Abr. 675, Evidence, pl. 5, "Un testimoigne est bone, per Atkins, et Hoke dit doit estre 2 al meins, ou est trie per testimoignez." See also Trials per Pais, 363. The general opinions of the middle ages render the existence of the exception in question extremely probable. Our old lawyers were by no means emancipated from the notion, the grounds of which we have examined supra, § 560, n. (g), that the divine law required two witnesses in every case, and that human legislation should be in accordance with it; see in particular, Plowd. 8; Fortescue, cc. 31 & 32; and 3 Inst. 26; but they considered this rule complied with when the issue was determined by a jury, who in early times were a sort of witnesses themselves; see Part 1, ch. 2, § 118. (c) 3 Blackst. Comm. 336; Finch, Law, 423; 8 Hen. VI. 23, pl. 7; 56 Hen. III. cited 2 Rol. Abr. 578, pl. 14. (d) Finch, in loc. cit. Evidence may be circumstantial. relying on the obiter dictum of the court in 8 Hen. VI. 23, pl. 7, says that it is the only case in which trial by witnesses is allowed. But other authorities mention several more; as, the summons of a tenant in a real action (e), the summons of a juror in an assize (ƒ), the challenge of a juror(g), and two viewers are said to have been required in an action of waste (h), &c. Mr. Justice Blackstone endeavours to reconcile the authorities, by supposing that the plea of the life of the husband in a writ of dower was the only case in which the direct issue in the cause was tried by witnesses, all the other instances being of collateral matters (i). But it is not quite clear that in very olden time, issue taken on the death of the husband in a cui in vitâ (k), and in some other cases (1), was not tried by witnesses; and with respect to the action of dower, although modern authorities speak of the above plea as a plea in bar (m), some of the old ones treat it as a dilatory plea (n). § 575. The evidence on this kind of trial need not be direct-it is sufficient if the witnesses speak to circumstances, giving rise to a reasonable intendment or pre (e) Co. Litt. 6 b; Gilb. Ev. This pro- sufficiency of the summons of a juror in a real action; see 2 Hawk. P. C. c. 25, s. 131. Certain it is that no such rule is observed in modern practice when a juror is challenged. (h) Clayt. 89, pl. 150. (i) 3 Blackst. Comm. 336. (k) 2 Edw. II. 24, tit. Cui in Vitâ. (1) See 36 Ass. pl. 5; 39 Id. pl. 9; 30 Id. pl. 26; 43 Ass. pl. 26. (m) Com. Dig. Pleader, 2 Y, 9; 2 Wms. Saund. 44 d, 6th Ed. (n) Bract. lib. 4, c. 7, fol. 301, 302; Dyer, 185 a, pl. 65. |