RULE 118. The entry of the hand or foot, or any instrument or weapon, is a sufficient entry.

CHAPTER CVII.

COMPETENCY OF EVIDENCE.

1. THERE are certain conditions precedent to be established before evidence can be submitted to the consideration of the jury.

(1.) The witness must be decided to be competent by the judge.

(2.) An oath, or its equivalent, must be administered. (3.) If a dying declaration is to be offered in evidence, it must be shown that the person making the declaration was in expectation of immediate death.

(4.) If the copy or contents of an instrument in writing is to be proved, it must be shown that diligent and unavailing search has been made to find the original.

2. It is the province of the judge alone to decide whether these conditions precedent have been fulfilled. If witnesses are offered to prove such conditions precedent, the court must decide upon the evidence. If rebutting evidence be offered, the court has no power to submit the question of competency to a jury.

3. To render the dying declarations of a deceased person

glary? What will constitute a breaking? What will constitute an entry?

1. What is to be established before evidence can be submitted to the consideration of the jury? What must be decided as to competency? What must be administered to the witness? If a dying declaration is to be offered in evidence, what must be shown as a condition precedent? If a copy of an instrument in writing is to be proved, what must be shown as a condition precedent?

2. By whom is it to be decided whether or not these conditions prece dent have been fulfilled? If witnesses are offered to prove such conditions precedent, who must decide upon the evidence? If rebutting evidence be offered ?

admissible, it must be shown that the party was in a dying condition, and conscious of the fact when he made the declaration. It is the apprehension of immediate death that renders the declaration competent evidence, and equivalent to its being made under oath. The party seeking to prove the contents of a lost paper is required to exhaust all the means of discovery which may be suggested by the nature of the case. When the instrument inay reasonably be supposed to be in the hands of the other party, notice should be given him to produce it, or that oral evidence would be given of its contents. When the instrument is in the hands of a third party, residing out of the jurisdiction of the court, its contents may be proved without giving notice to the opposite party to produce it.

4. Where the declarations of an agent are admissible, it must first be proved to the court that the person making the declaration was an agent. When the question of admissibility depends upon oral evidence, the evidence. must necessarily be given in the presence of the jury. Where it depends on written evidence, the evidence should be handed to the court, without stating the contents, in the presence of the jury. Persons of unsound. mind are incompetent to testify, and are excluded. Want of reason must be proved to the court, as other facts are proved. If a person is called as a witness in a state of intoxication, the court have the power to decide on the incompetency from their own view of the situation of the witness.

3. What is a condition precedent to the admission of a dying declaration in evidence? What renders the declaration competent evidence? What is a party seeking to introduce evidence of the contents of a lost paper required to do? When the instrument may reasonably be supposed to be in the hands of the opposite party? When it is in the hands of a third party, residing out of the jurisdiction of the court?

4. When the declarations of an agent are admissible, what must first be proved? When the question of admissibility depends upon oral evidence, where must it be given? Where it depends upon written evidence? If a witness is of unsound mind? How is insanity shown? If a person is called as a witness in a state of intoxication?

5. There is no particular age at which a witness must arrive, in order to be competent to testify. When an infant is offered as a witness, the court must decide whether he is competent or not. The credibility and weight of his evidence is a question for the jury. The method of administering an oath to a witness in New York is as follows. The witness lays his right hand upon the Bible, while the person administering repeats the words of the oath. The witness then kisses the Bible. Those who desire it may "swear in the presence of the everliving God," with the uplifted hand. If a person has conscientious scruples against taking an oath in any form, he may affirm in the following language: "You do solemnly, sincerely, and truly affirm." The court may adopt that form which the witness shall consider the most solemn and binding upon his conscience. If the witness believe in any other than the Christian religion, he may be sworn according to the ceremonies of that religion. A Jew generally takes the oath with his head covered. In whatever form the oath is administered, the meaning and obligation is the same. In most of the States, no witness is incompetent to testify on account of his religious belief. In some of the States, however, atheists are not competent witnesses. The incompetency of the witness, from defect in his religious belief, must be proved by his conversations and declarations upon the subject. The witness cannot be compelled to declare his belief, but this is proved by other witnesses.

6. Formerly, no person who had any pecuniary interest in the result of the action could be a witness. By the

5. Is any particular age necessary to the competency of a witness? When a witness is an infant, who decides his competency? Who determines his credibility? What is the method of administering an oath ? What form may the court adopt? If the witness believes in any other than the Christian religion? How does a Jew generally take the oath? Is the meaning the same, if administered in different forms? What effect does the religious belief of a witness have upon his competency? How is the religious belief of the witness proved? Can a witness be compelled to declare his belief?

6. What was the former rule as to interest? What is the present

statutes of New York and other States, no person is excluded on the ground of interest; and the parties themselves may be sworn as witnesses. The usual method of testing the competency of a witness is to administer to him a preliminary oath, called a voir dire. He is sworn to answer all questions that may be put to him touching his competency. The party objecting to the competency of the witness may produce testimony to show that he is incompetent, or may have him sworn and examined. It rests upon the party objecting to show that the witness is incompetent. When the party entitled to object has no means of knowing the incompetency before the examination, he may have the testimony stricken out, if the witness is found to be incompetent.

CHAPTER CVIII.

KINDS OF EVIDENCE.

1. THERE are two kinds of evidence

(1.) Oral evidence.

(2.) Written evidence.

Oral evidence is that which is given viva voce, either in open court or before a magistrate. Every court of competent authority to hear and determine an action has the inherent power to summon and compel the attendance of witnesses, for the purpose of proving the facts at issue. The ordinary summons, is a subpoena directed to the witness, commanding him to appear at the court to give evidence in a cause therein described, pending in such court,

rule as to interest in New York. What is the usual method of testing the competency of a witness? What two methods may be adopted in testing the competency of the witness? Can the party objecting produce evidence to show the incompetency of the witness? When must the objection be raised?

1. How many kinds of evidence? What is oral evidence? What inherent power has every court? To whom is the subpoena directed?

under a certain penalty named in the subpoena. If the witness is expected to produce any books or papers in his possession, a clause to that effect is inserted in the subpœna. It is then called a subpoena duces tecum.

2. The service of the subpoena is regulated by the statutes of the several States, or by the rules of the court. The reasonable expenses of the witness are fixed by statute at a specific sum for each day's attendance, and for each mile's travel from the residence of the witness to the place of trial and back. The sum is not the same in all the States. In some States, it is sufficient to tender to the witness his travelling fee, and the fee for one day's attendIn criminal cases, no tender is necessary. If any thing is paid in such cases, it is paid from the public treasury. The accused is entitled to compulsory process for obtaining witnesses in his favor. If the witness waive his right to any fee in a civil case, a tender is not necessary. It is necessary in all cases, in order to compel the attendance of a witness, that he be summoned. If a witness is in custody, or is in the military or naval service, and not at liberty to attend without leave of his superior officer, which he cannot obtain, he may be brought into court to testify by a writ of habeas corpus ad testificandum. Where the accused is held for trial, the witnesses may be required to give security to appear in court on the day of trial, and give evidence in the case. If any witness cannot give such security, he may be committed to prison until that time.

What does it command the witness to do? If the witness is required to produce any books or papers? What is such subpœna called?

2. How is the service of the subpœna regulated? How are the reasonable expenses of the witness fixed? Is it the same in all the States ? What must be tendered to the witness when subpoenaed? Is any tender necessary in criminal cases? If any thing is paid in such case, out of what is it paid? To what is the accused entitled in criminal cases? It a witness waive his right to his fees in civil cases? What is necessary in all cases, to compel a witness to attend? If the witness is in custody, or under a superior officer? When the accused is held for trial, how may the attendance of the witness be secured? If the witness cannot give security?