[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 opo rate 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. [18] § 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 ca ses 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 arti of distinct and collateral provisions; [15] 2. Private writings are proved by producing the attesting witness, or in case of his death, ab sence, 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 acquaint. ed 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. & 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 judg ment 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 Judg ments. Vide, generally, the Treatises on evidence of Gilbert, Phillips, Starkie, Roscoe, Swift, Bentham, Macnally, and Peake; the various Digests, h. t. 1. Primary, 3. 1. Must be confined to the issue, 10. 3. The affirmative must be proved, 12. 3. The instruments of the evidence, 13. 1. Records, 14. 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 coun. tries; 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 Evidence, what, 1. It is considered with third persons as to a fact, are called regard to. TABLE. 1. Its nature. 2, In this respect it is hearsay evidence. Such mere recitals or assertions cannot be received in evidence, for many reasons, but | rial of the particular facts it recites; principally for the following: first, for by doing so, oral testimony would that the party making such declara- be admitted in usurpation of a species tions is not on oath; and, secondly, of evidence decidedly superior in because the party against whom it degree. 1 Serg. & Rawle, 464; Ib. operates, has no opportnnity of cross- 27; Addis. R. 361; 2 Dall. 172; 1 examination. 1 Phil. Ev. 185. See Yeates, 140; 1 Binn. 616; 3 Marsh. for other reasons 1 Stark. Ev. 4, pt. (Ken.) R. 333; 4 Bibb, R. 473; 1 p. 44. The general rule excluding Bibb, R. 271; 11 Mass. R. 30; 13 hearsay evidence does not apply to Mass. R. 443; 3 Conn. 9; 20 Johns. those declarations to which the party 49; 12 Johns. R. 77; 3 Camp. 57; is privy, or to admissions which he 1 Esp. C. 53; 1 M. & S. 21; Bunb. himself has made. See Admissions. 175. '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. 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. & Rawle, 340; Poth. Obl. Pt. 4, c. 2. EVIDENCE, PAROL, in prac- EVIDENCE, SECONDARY, in tice. Parol evidence is that which practice. Secondary evidence is the is given by witnesses, viva voce, in proof of certain facts by such testicontradistinction to that which is mony as admits that there is or was written or documentary. It is a other evidence of a more satisfactory general rule that oral evidence shall nature on the same subject, within in no case be received as equivalent the power of the party offering the to, or as a substitute for a written same as the proof of the contents instrument, where the latter is re- of a writing, when the original has quired by law; or to give effect to been lost or destroyed, or is in tho a written instrument which is defec- possession of the opposite party. tive in any particular which by law Gresl. Eq. Ev. 174. It is that proof is essential to its validity; or to con- which is not the best to exhibit the tradict, alter or vary a written in- true state of the facts to which it strument, either appointed by law, or relates, but when such primary evi by the contract of the parties, to be dence cannot be had, the best in the the appropriate and authentic memo-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. & 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, crim. law. This is a technical expression which signifies, that something has been after 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. Dall. 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. 3 EXACTION, torts, a wilful wrong 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 | examinations, see Gresl. Eq. Ev. pt. extorts more than his due, when 1, c. 3, s. 2. 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. EXAMPLE. An example is a case put to illustrate a principle. Examples illustrate but do not restrain or change the laws; illustrunt 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, con 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 cross-struction. Exceptions are rules or examination, (q. v.) The examina- laws which bound the extent of tion is to be made in open court, others; they limit the extent of the when practicable, but when on ac- rule to which they apply, and render count of age, sickness or other cause that just and proper, which would be, the witness cannot be so examined, on account of its generality, unjust then it may be made before author- and improper; for example, it is a ised commissioners. In the exami- general rule that parties competent nation in chief the counsel cannot may make contracts, the rule that ask leading questions, except in par- they shall not make any contrary to ticular cases. Vide Cross Examina- equity, or contra bonos mores, is the tion; Leading Question. exception. 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 An EXCEPTION, in contracts. 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 |