387 CHAPTER V. OF THE LEADING PRINCIPLES OF EVIDENCE BY IS WHICH THE INTERPOSITION OF THE COURTS PART IV. CAP. V. Direct and indirect EVIDENCE is either direct or indirect. Direct evidence is that which directly proves a fact, by witnesses, things, or documents. Indirect or circumstantial evidence is that which only evidence. indirectly proves a fact, by way of inference; and it is either conclusive or presumptive, according as the fact to be proved is a necessary consequence, or is only a matter of probable inference. (Best, 24-5, 388; Powell, 48.) secondary Direct evidence is either primary or se- Primary and condary. Primary evidence would seem to evidence. * In addition to the philosophic and highly instructive elementary treatise of Mr. Best, the compendious and able treatise of Mr. Powell, and the elaborate practical work of Mr. Roscoe on 'Evidence at Nisi Prius,' on which this concise statement of some of the leading principles of the Law of Evidence is founded, the reader is referred generally to the learned works of Mr. Phillips, Mr. Taylor, Mr. Starkie, and others, on the same subject. PART IV. be that which constitutes the most original TIT. II. CAP. V. and the highest kind of proof. Secondary evidence would seem to be that which constitutes a derivative or inferior kind of proof. General rule as to the dence to be adduced. It is a general rule that the highest kind, kind of evi- though not the fullest quantity, of evidence must be given of which the nature of the case admits, and which can be obtained; and that secondary evidence is only admissible where primary evidence cannot be obtained. And hence a person may not adduce such evidence as necessarily presupposes the existence of a higher kind of evidence, of which he might have availed himself, but which he has kept back. (Best, 112-4, 579; Roscoe, 1, 4; Powell, 4, 41-2.) Keeping back a higher evidence. Admissibility of secondary evidence. When records and other instruments are facts in issue, no derivative evidence of their contents is receivable until the absence of the original writing is accounted for. (Best, 299, 300; Powell, 41, 356.) But when primary evidence cannot be had, or at least without such a degree of inconvenience as to amount to that which would be in the highest degree unreasonable, secondary evidence is receivable; as when an original document is destroyed or lost, or is in the possession of the adverse party, who does not produce it after due notice, or of a party who is privileged to withhold it and insists on his privilege, or of a party who is out of the jurisdiction of the Court; or as in the case of a document of a public nature, of which, to prevent inconvenience, a certified or examined copy is sufficient evidence. (Best, 594, 600; Powell, 318, 337, 356; Roscoe, 415.) Part IV. TIT. II. CAP. V. secondary which is The law does not recognise any degrees in Kind of secondary evidence. A party entitled to re- evidence sort to secondary evidence may in general receivable. resort to any form of it. Thus, the evidence of a witness who has read a destroyed or lost document is receivable, though a copy of it is in existence. But that which is adduced as evidence must really amount to legitimate proof; so that a copy of a copy is not receivable. (Best, 597; Roscoe, 12; Powell, 355.) Hearsay evidence—that is, a statement of Hearsay what the witness has heard another say is generally inadmissible. But it is admissible when it constitutes part of a transaction, and is explanatory of the nature of such transaction. And (as we shall presently see) there are various cases in which general reputation or the declarations of other persons may be adduced as evidence. (Roscoe, 36, 39, 43; Powell, 84-8, 91, 94.) evidence. PART IV. TIT. II. Evidence on matters of public and general interest, by declarations of deceased Matters of public and general interest — CAP. V. such as the boundaries of counties or parishes, rights of common, claims of highway, &c.— may be proved by common reputation, and even by the declarations of deceased persons who may be presumed to have had competent knowledge on the subject, if such declarations were made before any controversy arose. (Best, 613; Powell, 94, 103-4; Roscoe, 39-43.) persons, &c. Evidence on pedigree, by tions, &c. Matters of pedigree may be proved by such declara- declarations of deceased persons connected with the family, if made before any controversy arose; by the general reputation of a family, proved by a surviving member of it ; by entries in books made by members of the family; by correspondence between them; by recitals and descriptions in deeds and wills, inscriptions, genealogies, &c. (Best, 614; Roscoe, 36-7; Powell, 112-22.) Declarations of deceased Declarations made by deceased persons persons, in who had no interest to pervert the facts, and other cases. made them against their pecuniary or pro prietary interest, are receivable in evidence in proceedings against third parties. (Best, 615; Powell, 129, 131, 133.) Contemporaneous declarations made in the regular course of business by deceased per sons, who had a personal knowledge of the facts and no interest in misrepresenting the truth, are admissible in evidence. (Best, 616; Powell, 138, 144-5; Roscoe, 50.) PART IV. TIT. II. CAP. V. witnesses. The opinions of witnesses are not in gene- Opinions of ral admissible as evidence. But in matters of science, skill, trade, and peculiar knowledge, experts that is, persons conversant with the subject -are often required to give their opinions. (Best, 627, 630; Powell, 61-3; Roscoe, 153.) and self evidence. Self-serving evidence is not in general Self-serving admissible; but self-disserving statements, disserving usually termed admissions, are ordinarily receivable in civil cases. (Best, 639, 651, 671.) evidence is In civil cases, subject to the rules as to How much the burden of proof, a mere preponderance requ:site. of probability is a sufficient ground of decision: and slight evidence uncontradicted may become cogent proof. (Best, 120, 337.) one witness. The testimony of a single witness is suffi- Sufficiency of cient in civil cases. And where an instrument is subscribed by several witnesses, it is generally sufficient to call one, except that, in the case of wills, it is the practice of Courts of Equity to require that all the witnesses who are in England, and capable |