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without them. They are indispensable in all the sciences, and particularly in civil life, and we must constantly have recourse to them. The certainty, or at least probability, of which they assure us when well considered, are such that we cannot withold our assent to them without imprudence, if not folly. And if these means which nature has furnished us sometimes fail, it is generally owing to the precipitation of our judgments.
Every thing that can be done to prevent these errors has been provided by the law by establishing rules which shall guide the magistrate called upon to decide upon the rights of his fellow citizens.
It is a general rule, applicable to all species of evidence, that the proof of facts derives its force from other known facts, from which we conclude that those which are unknown are true; either by drawing a consequence of a cause from its effect, or of an effect from its cause, or from the connection which one thing has with another. Thus, all the art of the human mind, all the prudence and experience of the judges, consists in drawing from a known fact a certain consequence which makes known a doubtful fact.
The subject of evidence will be divided into two branches: under the first will be considered the nature, the object of evidence, the instruments by which truth is established, and the effect of evidence; the manner of giving evidence will be discussed under the second.
3055. Evidence will be considered with reference to its nature, its object, the instruments by which facts are established, and its effect.
3056. Evidence, considered as to its nature, is primary, secondary, positive, circumstantial or presumptive, hearsay, admitted, confessed, relevant, and irrelevant.
3057. Primary evidence is the best of which the case in its nature is susceptible; the term is opposed to secondary evidence, which supposes some other or primary evidence behind. The rule that the best evidence shall be required does not demand the greatest amount of evidence which can possibly be given of any fact; its object is to exclude from the case any evidence which supposes better evidence in the possession of the party ; for that better evidence may be withheld because it would prove facts differently from what the secondary would establish. This rule, then, excludes only that evidence which indicates the existence of more original sources of information ; but when there is no substitution of evidence, but simply a selection of weaker instead of stronger proof of the same nature, it is not required that the party should supply all the proof capable of being produced. For example, when a written contract has been entered into, and the object is to prove what it was, it is requisite to produce the original writing, if it is to be obtained, and, in that case, no copy or inferior evidence will be received. But, being produced, its execution may be proved by only one of two attesting witnesses.
3058. To this general rule there are several exceptions.
As it refers to the quality rather than the quantity of the evidence, it is plain, as before observed, that the fullest proof every case admits of is not requisite; if, therefore, there are several eye-witnesses to a fact, it may be sufficiently proved by one only, and the evidence of a bystander is admissible to prove where lines were run in a private survey, though the surveyor be living.
It is not always requisite, when the matter to be proved has been reduced to writing, that the writing should be produced; as, if the narrative of a fact to be proved has been committed to writing, it may yet be proved by parol. A receipt for the payment of money, for example, will not exclude parol evidence
* See 2 D'Augesseau, Plaidoyer 236, p. 351; Pardessus, ed.
of payment. But this exception does not extend to those cases where the law requires the instruments should be in writing, such as records, public documents, official examinations, deeds of conveyance of land; wills, other than nuncupative, promises required to be in writing by the statute of frauds, and the like, for in all these cases the writing must be produced if in the power of the party. And, again, parol proof cannot be substituted for the written evidence of any contract which the parties have put in writing.? Nor can oral evidence be substituted for any writing the existence of which is disputed, and which is material, either to the issue between the parties or to the credit of witnesses, and is not a mere memorandum of some other fact.8
Another exception to the rule arises from considerations of public convenience; for example, proof that an individual has acted notoriously as a public officer is prima facie evidence of his public character without producing his commission or appointment. But if the office is of a private nature, proof of the appointment of the agent must be made.10
3059. Secondary evidence is that species of proof which is admissible on the loss of primary evidence, and which becomes, by that event, the best evidence.
The rule that secondary evidence shall not be given when the primary can be had is grounded upon a reasonable suspicion that the substitution of inferior for better evidence arises from sinister motives, and an apprehension that the best evidence, if produced, would alter the case to the prejudice of the party. Besides, the secondary evidence is more liable to errors or mistakes than the primary; the copy of a written paper may be incorrect and differ from the original.
When primary evidence cannot be had, then secondary evidence will be admitted, because then it is the best. But before such evidence can be allowed, it must be clearly made to appear that the superior evidence is not to be had." The person who possesses it must be applied to, whether he be a stranger or the opposite party ; in the case of a stranger, a subpoena duces tecum and attachment when proper must be taken out and served; and in the case of a party, notice to produce such primary evidence must be proved before the secondary evidence will be admitted.12
When the original cannot be had, after due proof of its execution, the contents
64 Esp. 213. See Rex v. Holy Trinity, 7 Barnew. & C. 611; 1 Campb. 439; 3 Barnew. & Ald. 566. So the existence of a written clearance does not exclude parol evidence of the destination of a ship. Hadden v. People, 25 N. Y. 373.
Where the fact to be proved is the existence of a paper and not its contents, this be shown by parol. Gilbert v. Duncan, 5 Dutch. N. J. 133; Morrison v. Myers, 11 Iowa, 538; Smith v. Richards, 29 Conn. 232.
' Rex v. Holy Trinity, 7 Barnew. & C. 611; Dennett v. Crocker, 8 Me. 239; Spiers v. Wilson, 4 Cranch, 398.
8 1 Greenleaf, Ev. & 88; 1 Phillips, Ev. 422; Vincent v. Cole, 1 Mood. & M. 258. • United States v. Reyburn, 6 Pet. 352; Milnor v. Tillotson, 7 Pet. 100; Jacob v. U. S. 1 Brock. C. C. 520. Thus parol evidence is admissible in the absence of any record to show that town officers were duly sworn. Hathaway v. Addison, 48 Me. 440.
10 Short v. Lee, 1 Jac. & W. Ch. 464. u See Ford v. Walsworth, 19 Wend. N. Y. 334; Flinn v. McGonigle, 9 Watts & S. Penn. 75; Woodsworth v. Barker, 1 Hill, N. Y. 172; Harris v. Doe, 4 Blackf. Ind. 369; Doe v. McCaleb, 3 Miss. 756; Bouldin v. Massie, 7 Wheat. 122; Guerin v. Hunt, 6 Minn. 375. It is not necessary to prove the loss of the primary evidence beyond the possibility of a doubt, but only to a moral certainty. United States v. Sutter, 21 How. 170. In regard to lost writings it is sufficient to show that all the search reasonably practicable has been made without success. Holbrook v. School Trustees, 28 Ill. 187; Hatch v. Carpenter, 9 Gray, Mass. 271; Blackstone v. White, 41 Penn. St. 330; Phænix Ins. Co. v. Taylor, 5 Minn. 492; Moore v. Beattie, 33 Vt. 219. 12 Patton v. Tybout, 7 Serg. & R. Penn.
116; Myer v. Barker, 6 Binn. Penn. 228; Drum v. Simpson, 6 Binn. Penn. 478; Reading R. R. v. Johnson, 7 Watts & S. Penn. 317 ; Barker v. Barker, 14 Wisc. 131.
should be proved by a counterpart, if there be one, for that is the next best evidence; and it seems that no evidence of a mere copy is admissible until proof has been given that the counterpart cannot be produced. If there be no counterpart, a copy may be proved by any witness who knows that it is a copy from having compared it with the original. If there be no copy, the party may produce an abstract, or give even parol evidence of a deed.25
But it has been decided that there are no degrees in secondary evidence; and when a party has laid a foundation for such evidence, he may prove the contents of a deed by parol, though it appear an attested copy is in existence.
The rule adopted in the United States generally is that secondary evidence cannot be introduced if it is shown that other more satisfactory evidence, although secondary, exists and could have been produced. Thus parol evidence of the contents of a written paper is inadmissible if a written copy exists.
3060. This rule rejecting secondary evidence is subject to some exceptions, of which the following are the principal :
Records of a judicial court and public books or registers may be proved by an examined copy ; 18 the reason of this is that those books cannot be removed from place to place because they might be wanted at two places at the same time, and because, being public, a fraud or error in the copy might be easily detected. But this exception does not extend to depositions, or affidavits, or an answer to a bill in chancery, when the party is indicted for perjury; nor perhaps to cases where the party denies his hand writing to a bond or recognizance, unless the copy has been made evidence by a special law.19
It is not in general necessary to prove the written appointment of public officers; proof of their acting as such is, prima fucie, sufficient between third parties 20
When the evidence is the result of voluminous facts, or of the inspection of many books and papers, the examination of which could not be conveniently made in court, the rule is so far relaxed that secondary evidence will be admitted; as, if there be one invariable mode of drawing bills of exchange between the parties, this may be proved by witnesses who know the facts without producing the bills.21
Inscriptions on walls, fixed tables, mural monuments, gravestones, which cannot conveniently be produced in court, may be proved by secondary evidence.”
In the examination of a witness on his voir dire, and in preliminary examinations of the same nature, if the witness discloses the existence of a written instrument affecting his competency, he may also be interrogated as to its contents;
13 King v. Castleton, 6 Term, 236.
14 Buller, Nisi P. 254. 15 King v. Metheringham, 6 Term, 556; 10 Mod. 8. 16 Brown v. Woodman, 6 Carr. & P. 206; 8 id. 389.
17 Conger v. Converse, 9 Iowa, 554; United States v. Britton, 2 Mas. C. C. 468. Thus upon proof of the loss of an execution the execution docket must be produced as the next best evidence. Ellis v. Huff, 29 Ill. 449.
18 When the record has been lost or destroyed its contents may be proved by secondary evidence. Graham v. O'Fallow, 3 Mo. 507. In the United States, generally, a certified copy of public records made by an officer whose duty it is to keep them is sufficient. United States v. Percheman, 7 Pet. 51 ; Warner v. Hardy, 6 Md. 525.
19 See Rex v. Howard, 1 Mood. & R. 189; Buller Nisi P. 226; 1 Starkie, Ev. 189; 1 Greenleaf, Ev. & 91. 20 Cabot v. Given, 45 Me. 44.
1 Greenleaf, Ev. & 93; 1 Phillipps, Ev. 433. The court may at their discretion allow abstracts of voluminous books and accounts, to be prepared er parte and submitted to the jury, the opposite party having an opportunity to examine them. Boston R. R. v. Dana, i Gray, Mass. 83. Meyer v. Sefton, 2 Stark. 274.
the rule in this case is that if the objection arises on the voir dire, it may be removed on the voir dire.23
3061 Positive evidence is that which, if believed, establishes the truth or falsehood of a fact in issue, and does not arise from any presumption. Evidence is direct and positive when the very facts in dispute are communicated by those who have the actual knowledge of them by means of their senses. In these cases the factum probandum is attested by those who speak from their own actual personal knowledge of its existence, and the credit which we give it rests on our faith in human testimony, sanctioned by experience. We have only to fear that the witness wishes to deceive, or that he has been deceived. When the evidence is not direct and positive, there is danger that we may not clearly perceive the connection between the facts proved and the facts in controversy.
3062. Circumstantial evidence is the proof of collateral facts, and differs from direct or positive proof in this, that it never proves directly the fact in question. A fact which is not positively known is presumed or inferred from one or more other facts or circumstances which are known. Sometimes circumstances are so powerful that it is impossible to resist them, and then such circumstantial evidence is said to be certain ; at other times such circumstantial
l evidence is not so conclusive; it is then said to be uncertain, or merely probable. Of the first kind is a case where a body is found dead, being that of a person of mature age, with a recent mortal wound, and the mark of a bloody left hand
upon the left arm; the conclusion that he once lived, and that another person was present at or about the time the wound was inflicted, may
be considered certain; but whether the death was caused by suicide or murder, and whether the mark of the bloody hand was that of a murderer or of a friend who came to his relief, or to prevent the crime, is a conclusion which does not necessarily follow from the facts proved. It is certain that the bloody mark was not made by the deceased, because no man can make such a mark.25 Another case of the certainty of circumstances, which renders the most positive testimony of a witness incredible, may be mentioned. A man is found dead; a witness swears he saw him shoot himself with a pistol which the deceased held in his hand; upon an examination the ball is extracted from the body, and found to be too large to enter into the pistol ; in such case the witness ought not to be credited.26
3063. Presumptions are the consequences of a known fact to make known the truth of an uncertain fact, the proof of which is sought. For example, if a question arise as to the right to an estate between the possessor and á stranger, as to which is the owner, the law presumes it belongs to the possessor, and he will be maintained in his possession until the other proves his right; for it is not common that a person shall take possession without right, nor that the owner should allow himself to be deprived of his possession.
Presumptions, which are sometimes confounded with circumstantial evidence, are however different; circumstantial evidence is the means employed to come to the knowledge of one or more facts to establish the existence of another; a presumption is an inference as to the existence of one fact from the existence of some other fact founded on a previous experience of their connection.28
To constitute such a presumption, a previous experience of the connection between the known and inferred facts is essential; this connection must be of such a nature that as soon as the evidence of one is established, admitted, or
Phillipps & Am. Ev. 149; 1 Phillipps, Ev. 154; 1 Greenleaf, Ev. & 94. 24 1 Phillipps, Ev. 116; 1 Stark. 19.
25 14 How. St. Tr. 1324. Starkie, Ev. 505. 27 1 Domat, Lois Civiles, liv. 3, t. 6, s. 4, n. 1. 38 3 Starkie, Ev. 1234; 1 Phillipps, Ev. 116; Gilbert, Ev. 142; Pothier, Obl. n. 840. VOL. II.-Z
assumed, the inference as to the existence of the other immediately arises, independently of any reasoning upon the subject. Presumptions are either legal and artificial, or natural.
3064. Presumptions of law consist of those rules which in certain cases either forbid or dispense with any further inquiry. These presumptions derive their force either from the first principles of justice, the laws of nature, or the experience and conduct of human affairs, and the connection usually found to exist between certain things. These presumptions are divided into two kinds, namely, conclusive, or which cannot be disputed, and inconclusive, or which are disputable.29
3065. Conclusive, imperative, or absolute presumptions of law are -rules de termining the quantity of evidence requisite for the support of any particular averment, which is not permitted to be overcome by any proof that the case is otherwise.
Abstractly considered, a presumption is the inference drawn of the resemblance between certain facts and probabilities, and reason would require that such presumption should yield to positive proof; and that if the means of demonstrating truth are at hand, it would be shutting our eyes and becoming wilfully blind to refuse to receive the light which would establish it against a presumption of law. If we reflect with attention, we will perceive that it would be neither reasonable nor possible, without opposing the very intent of the law and going contrary to its wisdom, to admit evidence against presumptions which are its very foundation. This will be rendered manifest by an example: the incapacity of an infant to contract is a rule founded on the general presumption that minors have not yet arrived at that age when the intellectual and moral faculties of man are entirely developed, and which produces that maturity of reason and that prudence which are required to make a contract without temerity. That capacity, however, is not the same with every one. Temperament, climate, education, make it vary to infinity. Nature has not pointed out any certain signs; yet, without suffering greater inconvenience, the determination when each individual should be considered capable of entering into contracts could not have been left open as to each individual so as to enable a jury to decide that question in every case. If such were the law, there would be required as many judgments as there are men.
The law has fixed the age, but it has not been fixed arbitrarily. After many observations, made during a long space of time, as to the period when the greater part of men acquire the faculties which they have at maturity, ex eo quod plerumque fit, the law has presumed that this age is twenty-one years; it has fixed the presumption as on a fact which was known and which is generally true, before which time infants are not capable of making contracts against their interests. This is a general rule applying to all men.
Now could a plaintiff who sued an infant to enforce the performance of a contract he had made against his interest, ask to prove that the presumption of law which the infant invokes is not applicable to him, as he was, when the contract was made, a very shrewd young man, wanting only one day of being of full age, and that the presumption was contrary to truth ? Certainly not, for that would be to make the provisions of the law subordinate to the decision of the court and jury, whose duty it is to observe and not judge the law. The rule is universal in its application. Leibnitz, for example, that universal genius, who at the age of twenty years had written an excellent work on the best mode of teaching and learning jurisprudence, and who, treading in the steps of Bacon, had dared to point out the desiderata of that science, that is, in what it
29 1 Domat, Lois Civiles, liv. 3, t. 6, s. 4, n. 2.