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of distinct and collateral provisions; it is sufficient to state so much of the contract as contains the entire consideration of the act, and the entire act to be done in virtue of such consideration, including the time, manner, and other circumstances of its performance. 6 East, R. 568; 4 B. & A. 387; 6 E. C. L. R. 455. Secondly, In criminal cases it may be laid down, 1. That it is in general sufficient to prove what constitutes an offence. It is enough to prove so much of the indictment as shows that the defendant has committed a substantive crime therein specified. 2 Campb. R. 585; 1 Harr. & John. 427. If a man be indicted for robbery, he may be found guilty of larceny, and not guilty of the robbery. 2 Hale, P. C. 302. The offence of which the party is convicted must, however, be of the same class with that of which he is charged. 1 Leach, 14;
2 Stra. 1133.—2. When the intent of the prisoner furnishes one of the ingredients in the offence, and several intents are laid in the indictment, each of which, together with the act done, constitutes an offence, it is sufficient to prove one intent only.
3 Stark. R. 35; 14 E. C. L. R. 154, 163.—3. When a person or thing, necessary to be mentioned in an indictment, is described with circumstances of greater particularity than is requisite, yet those circumstances must be proved. 3 Rogers's Rec. 77; 3 Day's Cas. 283. For example, if a party be charged with stealing a black horse, the evidence must correspond with the averment, although it was unnecessary to make it. Roscoe's Cr. Ev. 77; 4 Ohio, Mo. —4. The name of the prosecutor or party injured must be proved as laid, and the rule is the same with reference to the name of a third person introduced into the indictment, as descriptive of some person or thing.
[ 12 ] 3. The affirmative of the issue must be proved. The general rule with regard to the onus of proving the issue requires that the party who asserts the affirmative should prove it. But this rule ceases to operate the moment the presumption of law is thrown in the other scale. When the issue is on the legitimacy of a child, therefore, it is incumbent on the party asserting the illegitimacy to prove it. 2. Selw. N. P. 709. Vide Onus Probandi; Presumption; 2 Gall. R. 485; and 1 McCord, 573.
[ 13 ] § 3. The .consideration of the instruments of evidence will be the subject of this head. These consist of records, private writings, or witnesses.
[ 14 ] 1. Records are to be proved by an exemplification duly authenticated, vide Authentication, in all cases where the issue is nul tiel record. In other cases an examined copy, duly proved will, in general, be evidence. Foreign laws as proved in the mode pointed out under the article Foreign laws.
[ 15 ] 2. Private writings are proved by producing the attesting witness, or in case of his death, absence, or other legal inability to testi. fy, as, if after attesting the paper, he becomes infamous, his hand-writing may be proved. When there is no witness to the instrument, it may be proved by evidence of the hand-writing of the party, by a person who has seen him write, or in a course of correspondence has become acquainted with his hand. See Comparison of hand-writing, and 5 Binn. R. 349;
10 Serg. &. Rawle, 110; 11 Serg. & Rawle, 333; 3 W. C. C. R. 31;
11 Serg. & Rawle, 347; 6 Serg. <fc Rawle, 12, 312; 1 Rawle, R. 223; 3 Rawle, R. 312; 1 Ashm. R. 8; 3 Penna. R. 136. Books of original entry, when duly proved, are prima facie evidence of goods sold and delivered and of work and labour done. Vide Original entry.
[ 16 ] 3. Proof by witnesses. Vide article Witness.
[ 17 ] § 4. The effect of evidence. Under this head will be considered, 1st, the effect of judgments rendered in the United States, and of records lawfully made in this country; and, 2dly, the effect of foreign judgments and laws.
[ 18 ] 1. As a general rule a judgment rendered by a court of competent jurisdiction, directly upon the point in issue is a bar between the same parties. 1 Phil. Ev. 242; and privies in blood, as an heir, 3 Mod. 141, or privies in estate, 1 Ld. Raym. 730, B. N. P. 232, stand in the same situation as those they represent; the verdict and judgment may be used for or against them, and is conclusive. Vide Res Judicata. The constitution the United States, art. 4, s. 1, declares, that "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And congress may by general laws prescribe the manner in which such acts, records, and proceedings, shall be proved, and the effect thereof." Vide article Authentication, and 7 Cranch, 481; 3 Wheat. R. 234; 10 Wheat. R. 469; 17 Mass. R. 546 ; 9 Cranch, 192; 2 Yeates, 532; 7 Cranch, 408; 3 Bibb's R. 369; 5 Day's R. 563; 2 Marsh. (Kty.) R. 293.
[ 19 ] 2. As to the effect of foreign laws, see article Foreign Laws. For the force and effect of foreign judgments, see article Foreign Judgments.
Vide, generally, the Treatises on evidence of Gilbert, Phillips, Starkie, Roscoe, Swift, Bentham, Macnally, and Peake; the various Digests, h. t.
Evidence, what, 1. It is considered with regard to. 1. Its nature. 2, In this respect it is
1. Primary, 3.
2. Secondary, 4.
3. Positive, 5.
4. Presumptive, 6.
5. Hearsay, 7.
6. Admissions, 8.
2. Its object, 9,
1. Must be confined to the issue, 10.
2. The substance of the issue must be proved, 11.
3. The affirmative must be proved, 12.
3. The instruments of the evidence, 13.
1. Records, M.
2. Private writings, 15.
3. Witnesses, 16.
4. The effect of evidence, 17.
1. Judgments rendered in the United States, 18.
2. Judgments rendered in foreign countries; and laws of those countries, 19.
EVIDENCE, BEST, in practice; by the best evidence is understood that proof which most certainly exhihits the true state of facts to which it relates. The law requires the best evidence to be adduced which the case admits of; or perhaps more properly speaking, it rejects secondary or inferior evidence, when it is attempted to be substituted for evidence of a higher and superior nature. This is a rule of policy, 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. This rule relates not to the measure and quantity of evidence, but to its quality when compared with some other evidence of superior degree. It is not necessary in point of law, to give the fullest proof that every case may admit of. If, for example, there be several eye-witnesses to a fact, it may be proved by the testimony of one only.
EVIDENCE, HEARSAY, in practice. The mere declarations of third persons as to a fact, are called hearsay evidence. Such mere recitals or assertions cannot be received in evidence, for many reasons, but principally for the following: first, that the party making such declarations is not on oath; and, secondly, because the party against whom it operates, has no opportnnity of crossexamination. 1 Phil. Ev. 185. See for other reasons 1 Stark. Ev. 4, pt. p. 44. The general rule excluding hearsay evidence does not apply to those declarations to which the party is privy, or to admissions which he himself has made. See Admissions.
'Many facts, from their very nature, either absolutely, or usually, exclude direct evidence to prove them, being such as are either necessarily or usually, imperceptible by the senses, and therefore incapable of the ordinary means of proof. These are questions of pedigree or relationship, character, prescription, custom, boundary, and the like; as also questions which depend upon the exercise of particular skill and judgment. Such facts, some from their nature, and others from their antiquity, do not admit of the ordinary and direct means of proof by living witnesses; and, consequently, resort must be had to the best means of proof which the nature of the cases afford. See Boundary; Custom; Opinion; Pedigree; Prescription.
EVIDENCE, PAROL, in prac tice. Parol evidence is that which is given by witnesses, viva voce, in contradistinction to that which is written or documentary. It is a general rule that oral evidence shall in no case be received as equivalent to, or as a substitute for a written instrument, where the latter is required by law; or to give effect to a written instrument which is defective in any particular which by law is essential to its validity; or to contradict, alter or vary a written instrument, either appointed by law, or by the contract of the parties, to be the appropriate and authentic memo
rial of the particular facts it recites; for by doing so, oral testimony would be admitted in usurpation of a species of evidence decidedly superior in degree. 1 Serg. & Rawle, 4G4; lb. 27; Addis. R. 361; 2 Dall. 172; 1 Yeates, 140; 1 Binn. 616 ; 3 Marsh. (Ken.) R. 333; 4 Bibb, R. 473; 1 Bibb, R. 271; 11 Mass. R. 30; 13 Mass. R. 443; 3 Conn. 9; 20 Johns. 49; 12 Johns. R. 77; 3 Camp. 57; 1 Esp. C. 53; 1 M. & S. 21; Bunb. 175.
But parol evidence is admissible to defeat a written instrument on the ground of fraud, mistake, &c, or to apply it to its proper subject-matter; or, in some instances, as ancillary to such application, to explain the meaning of doubtful terms, or to rebut presumptions arising extrinsically. In these cases the parol evidence does not usurp the place or arrogate the authority of written evidence, but either shows that the instrument ought not to be allowed to operate at all, or is essential in order to give to the instrument its legal effect. 1 Murph. R. 426; 4 Desaus. R. 211; 1 Desaus. R. 345; 1 Bay, R. 247; 1 Bibb, R. 271 ; 11 Mass. R. 30; see 1 Pet. C. C. R. 85; 1 Binn. R. 610; 3 Binn. R. 587; 3 Serg. <Sz Rawle, 340; Poth. Obi. Pt. 4, c. 2.
EVIDENCE, SECONDARY, in practice. Secondary evidence is the proof of certain facts by such testimony as admits that there is or was other evidence of a more satisfactory nature on the same subject, within the power of the party offering the same as the proof of the contents of a writing, when the original has been lost or destroyed, or is in tho possession of the opposite party. Gresl. Eq. Ev. 174. It is that proof which is not the best to exhibit the true state of the facts to which it relates, but when such primary evidence cannot be had, the best in the power of the party offering it. After proof of the due execution of the original, the contents should be proved by a counterpart, if there be one, for this 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. 6 T. R. 236. If there be no counterpart a copy may be proved in evidence by any witness who knows that it is a copy, from having compared it with the original. Bull. N. P. 254; 1 Keb. 117; 6 Binn. R. 234; 2 Taunt. R. 52; 1 Campb. R. 469; 8 Mass. R. 273. If there be no copy, the party may produce an abstract, or even give parol evidence of the contents of a deed. 10 Mod. 8; 6 T. R. 556. But it has been decided that there are no degrees in secondary evidence; and when a party has laid the foundation for such evidence, he may prove the contents of a deed by parol, though it appear that an attested copy is in existence. 6 C. & P. 206; 8 C. <fc P. 389. Before secondary evidence can be given of the contents of a paper which is in the possession of the opposite party, notice must be given to such party to produce it on the trial. 3 T. R. 306; 2 T. R. 201. And the service of such notice must be proved. 2 T. R. 201, n.; Gresl. Eq. Ev. pt. 2, c. 3, s. 2. Vide Notice to produce papers.
EVOCATION, French law, is the act by which a judge is deprived of cognizance of a suit over which he had jurisdiction, for the purpose of conferring on other judges the power of deciding it. This is done with us by writ of certiorari.
EX CONTRACTU. This term is applied to such things as arise upon a contract; as, an action which arises ex contractu. Vide Action.
EX DELICTO, which arises in consequence of a crime, misdemeanor, fault or tort; actions arising ex delicto, are case, replevin, trespass, trover. See Action.
EX MERO MOTU, from mere motion. To prevent injustice, the courts will, ex mero motu, make rules and orders which the parties would not strictly be entitled to ask for.
EX PARTE, of the one part. Many things may be done ex parte, when the opposite party has had notice; an affidavit, or deposition is said to be taken ex parte, when only one of the parties attends to taking the same.
EX POST FACTO, contracts, crime law. This is a technical expression which signifies, that something has been alter another thing, in relation to the latter. An estate granted may be made good or avoided by matter ex post facto, when an election is given to the party to accept or not to accept. 1 Co. 146. The constitution of the United States, art. 1, s. 10, forbids the states to pass any ex post facto law; which has been defined to be one which renders the act punishable in a manner in which it was not punishable when it was committed. 6 Cranch, 138. This definition extends to laws passed after the act, and affecting a person by way of punishment of that act, either in his person or estate. 8 Ball. 386; 1 Blackf. Ind. R. 193; 2 Pet. U. S. Rep. 413; 1 Kent, Com. 408; Dane's Ab. Index, h. t. This prohibition in the constitution against passing ex post facto laws, applies exclusively to criminal or penal cases, and not to civil cases. Serg. Const. Law, 356. Vide 2 Pick. R. 172; 11 Pick. R. 28; 2 Root, R. 350; 5 Monr. R. 133; 9 Mass. R. 363; 3 N. H. Rep. 475; 7 John. R. 488; 6 Binn. R. 271; 1 J. J. Marsh. 563; 2 Pet. R. 681; and the article Retrospective.
EXACTION, torts, a wilful \vr,ong done by an officer, or by one who, under colour of his office, takes more fee or pay for his services than what the law allows. Between extortion and exaction there is this difference; that in the former case the officer extorts more than his due, when something is due to him; in the latter he exacts what is not his due, when there is nothing due to him. Co. Litt. 368.
EXAMINATION, practice, is the interrogation of a witness, in order to ascertain his knowledge as to the facts in dispute between parties. When the examination is made by the party who called the witness, it is called an examination in chief. When it is made by the other party, it is known by the name of crossexamination, (q. v.) The examination is to be made in open court, when practicable, but when on account of age, sickness or other cause the witness cannot be so examined, then it may be made before authorised commissioners. In the examination in chief the counsel cannot ask leading questions, except in particular cases. Vide Cross Examination; Leading Question.
The laws of the several states require the private examination of a feme covert before a competent officer in order to pass her title to her own real estate or the interest she has in that of her husband: as to the mode in which this is to be done, see Acknowledgment. See also 3 Call, R. 394; 5 Mason's R. 59; 1 Hill, R. 110; 4 Leigh, R. 498; 2 Gill & John. 1; 3 Rand. R. 468; 1 Monr. R. 49; 3 Monr. R. 397; 1 Edw. R. 572; 3 Yerg. R. 548; 1 Yerg. R. 413; 3 J. J. Marsh. R. 241 ; 2 A. K. Marsh. R. 67; 6 Wend. R. 9; 1 Dall. 11, 17; 3 Yeates, R. 471; 8 S. & R. 299; 4 S. & R. 273.
EXAMINERS, practice, are persons appointed to question students of law, in order to ascertain their qualifications before they are admitted to practice. Officers in the courts of chancery whose duty it is to examine witnesses, are also called examiners. Com. Dig. Chancery, P. 1. For rules as to the mode of taking
examinations, see Gresl. Eq. Ev. pt. 1, c. 3, s. 2.
EXAMPLE. An example is a case put to illustrate a principle. Examples illustrate but do not restrain or change the laws; Must runt non restringunt legem. Co. Litt. 24 a.
EXCAMBIATOR, the name of an exchange of lands; a broker. This term is now obsolete.
EXCEPTION, Eng. Eq. Practice. Re-interrogation, 2 Benth. Ev. 208, n.
EXCEPTION, legislation, construction. Exceptions are rules or laws which bound the extent of others; they limit the extent of the rule to which they apply, and render that just and proper, which would be, on account of its generality, unjust and improper; for example, it is a general rule that parties competent may make contracts, the rule that they shall not make any contrary to equity, or contra bonos mores, is the exception.
EXCEPTION, in contracts. An exception is a clause in a deed, by which the lessor excepts something, out of that which he granted before by the deed. To make a valid exception, these things must concur;
1, the exception must be by apt words, as, saving and excepting, &c.;
2, it must be of part of the thing demised, and not of some other thing;
3, it must be part of the thing only, and not of all, the greater part, or the effect of the thing granted; an exception, therefore, in a lease, which extends to the whole thing demised, is void; 4, it must be of such thing as is severable from the demised premises, and not of an inseparable incident; 5, it must be of such a thing as he that accepts may have, and which properly belongs to him; 6, it must be of a particular thing out of a general, and not of a particular thing out of a particular thing; 7, it must be particularly described and set forth; a