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of Brice v. Smith (3), where also the witnesses were all dead.


Qualification of Witnesses.

IN Hudson's case, reported in Skinner, it was proved that the witnesses had been dealt with; upon which it was urged by the counsel, that if the witnesses were not to be believed, then there would not be three witnesses to the will, and so no will within the statute; to which Chief Justice Pemberton answered, that if there were three witnesses to a will, whereof one was a thief, or person not credible, yet the words of the statute being satisfied, and he haring collateral proof to fortify the will, he would direct the jury to find it a good will. By which it

• 79.

(3) Willes's Rep. 1. Com. Rep. 539. S.C. But the report in Comyns seems to be a little inaccurate, in saying, that nothing but the names of the witnesses were subscribed; the attestation being expressed in the same words as in the above-mentioned case of Croft v. Paulet,“ signed, scaled, published and declared, by the said testator, to be his last will and testament, in the presence of us, &c." See the note of the editor. Willes 4. (b)

should seem, we ought to understand his Lordship to mean, that if there was nothing at the time of the attestation to impeach the competency of the witnesses, they must be regarded as credible witnesses at that time, within the proper interpretation of the word credible, as used by the statute. But if a witness be convicted of felony, and so rendered infamous, at the time of his subscribing the will, it seems not to have been doubted, but that the will was invalid, for defect of a sufficient attestation,

Crimes which stigmatize a man with infamy, when What offences

disqualify. convicted thereof, such as treason, felony, conspiracy at the suit of the crown, perjury, forgery, barratry, attaint of false verdict, and which disqualify him for giving evidence upon a trial in a court of justice, disqualify him also for becoming a subscribing witness to a will. It seems, indeed, to have been le is the infamy formerly a notion, that every offence for which a and nor of the man had been caused or even sentenced to be set in punishment,

which disquathe pillory, on account of the infamy of the punish- lifies, ment, rendered him incapable of giving testimony'; but more modern cases have established, that the infamy of the crime only, and not the infamy of the punishment, is the ground of disqualification; and according to the present doctrine, persons who have suffered an infamous punishment, unless the offence for which it was inflicted on them, was of the species of crimen falsi, or other crime of an infamous na

» Com. Dig. tit. Temoigne, A. 2.

c Co. Litt. 6. b.

ture, are not disabled from giving their testimony in a court of justice, however much their credit with the jury may be affected by such a fact. Before the statute of the thirty-first of this King', persons convicted of petit larceny, were judged not to be credible witnesses to attest a will under the statute of frauds. And in the case wherein this was held, the rule was also laid down in strong and clear terms, that it is the crime and not the punishment which makes a man infamous, and vitiates his testimony.

If a man be sentenced to the pillory for a treason. able libel, or slanderous words on government, he is not rendered incapable of becoming a witness in court, and is therefore a credible witness to a will; but if he be convicted of barratry, which is an infamous offence, though he be sentenced only to be fined, he is rendered incompetent as a witness in court, and unqualified, it is conceived, as a credible witness, to attest under the statute'. Idiots and madmen, and children under the age of common knowledge, who are incapable of discerning or estimating truth, are clearly in a state of legal incompetency to prove a fact, and therefore, can never be regarded as capable of attesting a will, so as to answer what the statute in

d By stat. 31 Geo. 3. c. 35, Willes, 665. 2 Wils. 182. And it is enacted, that no person see Rex v. Ford, 2 lk. 690. shall be an incompetent witness, 5 Mod. 15. by reason of a conviction of petit r Chater v. Hawkins. 3 Lev. larceny.

426. Rex v. Ford, 2 Salk. • Pendock v. Mackinder, 690,

tends by such attestation. And generally, I apprehend, it may safely be concluded, that whatever incapacitates a man as a witness at common law, is an objection to the sufficiency of his attestation as a credible witness, within the meaning of the statute; for credible,' in the place in which it stands in this The word ' creo

diblo' as it is statute, cannot well be received in any other sense used by the sta

tute must be than competent;' the word in its popular sense be- understood in ing incapable of any constant test or standard, ac- competent. cording to which a testator could make his choice of witnesses with any confidence in the validity of their attestation.

the sense of

Upon the same principle, if the competency, after being lost, has been restored before the attestation, the credit required by the statute has also been re-established, and the attestation will be good. Thus the King's pardon, after a conviction of perjury, or other offence at common law, qualifies the party to attest a will, though, as it should seem, it would be otherwise in the case of a conviction of perjury, on the statute of 5 El. c. 9(1). And such restoration to competency would come too late, as I appre

(1) If a man be convicted of perjury upon the statute, he cannot be restored to credit by the King's pardon; for by the statute, it is part of the judgment, that the convict be infamous, and lose the credit of his testimony; nothing therefore but a reversal of the judgment, or a statute pardon will, in that case, suffice to restore the competency. Rex v. Crosby, 2 Salk. 689, and Rex v. Ford, ibid. 690. 3 Salk. 155.

hend, between the time of attestation and examination in court (2).

Of the qualifica- (2) By the laws of the empire, those persons only were capable tion of the attesting witnesses of attesting a will, who were themselves legally capable of making a in the civil law,

will. No

persons under puberty, or insane, or mute, or deaf, or prodigal interdicted the use of his own property, or such as the law had judged reprobate or infamous, or had rendered intestable, could be admitted as witnesses to a will. I. 2. 10. 6. D. 28. 1. 20. Neither could women be witnesses to regular or perfect wills: the law admitting them in all matters, whether civil or criminal, when the nature of the case was such, that other evidence could not be attained, but not when there was a choice of testimony, as in making wills, and solemnizing other public acts. Their testimony was admitted in proof of a fact, but not to give validity to a solemn instrument. See this particularity of the civil law explained, and the whole of this title of the Institutes qui testes esse prossunt well commented upon by Vinnius, edit. Hein. 297.

The witnesses by the civil law must be credible, and idoneous, at the time of the will's being made, and according to the humanity of that system, as well as of our own, every one was presumed to be fit as a witness, unless the contrary was made to appear. D. 22. 5. 2. It is to be observed too, that all the witnesses ought to be fit, or idoneous, for the whole will was rendered null and void by the insufficiency of of the witnesses. C. 6. 23. 12. unless a codi. eillary clause were added, that if it were not valid as a will, it should be valid as a codicil.

If a madman attested in a lucid interval, his attestation was good, and so was that of a prodigal, if, before attesting, he had returned ad bonos mores. The integrity and freedom of the witnesses was a great point in the imperial law; in so much, that no person could be a witness to a testament, who was under the power of the testator; and though any number of persons might be admitted witnesses out of the same family, to a will in which the family was not interested, yet if a son of a family gave away his military estate, or peculium,

any one

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