Page images





Direct and

EVIDENCE is either direct or indirect. Direct Part IV. evidence is that which directly proves a fact, CAP. V.

TIT. II. 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.) Direct evidence is either primary or se- Primary and

secondary 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.

as to the

dence be

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 con-
stitutes a derivative or inferior kind of

proof. General rule It is a general rule that the highest kind, kind of evi- though not the fullest quantity, of evidence adduced.

must be given of which the nature of the case admits, and which can be obtained; and that secondary evidence is only admis

sible where primary evidence cannot be obKeeping tained. And hence a person may not adduce back a higher evidence. 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.)

When records and other instruments are bility of secondary facts in issue, no derivative evidence of their evidence.

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



which is

party, who does not produce it after due Part IV.

Tit. II. notice, or of a party who is privileged to CAP. V. 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.)

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.)


terest, by declarations

persons, &.

PART IV. Matters of public and general interest
Tit. II.
Cap. V. such as the boundaries of counties or parishes,

rights of common, claims of highway, &c.— Evidence on public and may be proved by common reputation, and general in

even by the declarations of deceased persons of deceased who may be presumed to have had com

petent knowledge on the subject, if such declarations were made before any controversy arose. (Best, 613; Powell, 94, 103-4;

Roscoe, 39-43.) Evidence on

Matters of pedigree may be proved by pedigree, by such declara- declarations of deceased persons connected tions, &c.

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 Declarations. made by deceased persons of di ceased persons, in who had no interest to pervert the facts, and


made them against their pecuniary or proprietary 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



[ocr errors]


sons, who had a personal knowledge of the Part IV.

Tit. II. facts and no interest in misrepresenting the Cap. V. truth, are admissible in evidence. (Best, 616; Powell, 138, 144-5; Roscoe, 50.)

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.)

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.)

In civil cases, subject to the rules as to How much the burden of proof, a mere preponderance requisite. of probability is a sufficient ground of decision: and slight evidence uncontradicted may become cogent proof. (Best, 120, 337.)

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

evidence is


one witness.

« EelmineJätka »