CHAPTER I.

KINDS OF EVIDENCE.

SECTION 1. DEFINITIONS.

Evidence, in its broadest sense, includes all the means by which any alleged matter of fact, the truth of which is submitted for investigation, is established or disproved. It embraces every matter of fact, the effect, tendency or design of which, when presented, is to impress upon the mind a just conviction of the truth or falsehood of any substantive proposition which is affirmed on the one side and denied on the other.

In order to be received by a court, the evidence submitted must be competent, relevant and material.

SECTION 2. COMPETENT EVIDENCE.

By competent evidence is meant that which the very nature of the thing to be proved requires as the fit and appropriate proof in the particular case, such as the production of a writing, where its contents are the subject of inquiry.

SECTION 3. RELEVANT EVIDENCE.

Evidence is relevant when it proves or tends to prove the issues of fact which the parties have made by their pleadings, or constitutes a link in the chain of proof.

SECTION 4. MATERIAL EVIDENCE.

Evidence is said to be "material" when it bears upon the substantial matters in controversy, and has

probative weight in determining the issues presented by the pleadings.

SECTION 5. EVIDENCE AND PROOF DISTINGUISHED.

While legal writers and practitioners alike have often used these terms indiscriminately, as synonymous with each other, each has a well-defined meaning in the law. The most careful logicians have applied the term "evidence" to the medium by which the truth is established, and the term "proof" to the effect which the evidence produces upon the judicial mind. "Evidence" bears the same relation to "proof" that "cause" does to "effect"; i. e., a means to an end. Proof is the end to be attained; evidence the means of attaining it.

SECTION 6. DIRECT AND CIRCUMSTANTIAL EVIDENCE.

Direct evidence is the testimony, either verbal or written, of competent witnesses, who speak from their own actual and personal knowledge concerning matters which go immediately to a fact in issue. This is called direct or positive testimony.

Circumstantial evidence, on the other hand, does not go directly to the factum probandum, but relates immediately to subordinate facts which, by their connection, near or remote, to the fact in issue, inferentially tend to prove the existence of the fact sought to be proved.

Chief Justice Gilpin, in State vs. Carter, 1 Houst., Cr. C., 402, says: "As a matter of course, and from necessity, all judicial evidence must be either direct or circumstantial. When we speak of a fact as established by direct or positive evidence, we mean that it has been testified to by witnesses as having come

under the cognizance of their senses, and of the truth of which there seems to be no reasonable doubt or question; and when we speak of a fact as established by circumstantial evidence, we mean that the existence of it is fairly and reasonably to be inferred from other facts and circumstances proved in the case." SECTION 7. AFFIRMATIVE AND NEGATIVE EVIDENCE.

Where a witness swears that a particular act occurred at a specified time and place, or that particular language was spoken, this is "affirmative" or "positive evidence." But if another witness were present at the same time and place, and were to swear that he did not observe the act, or hear the language of which the other witness speaks, this would be called "negative evidence." It is a rule of law, too firmly established to be questioned, that positive or affirmative evidence is entitled to more weight than negative testimony.1

1 Frizell vs. Cole, 42 Ill., 364.

CHAPTER II.

BEST AND SECONDARY EVIDENCE.

SECTION 8. BEST EVIDENCE RULE.

From earliest times, in the production of evidence, courts have required to be produced the best evidence of which the case in its nature is susceptible, if obtainable. This is known as the "best evidence rule," and allows no evidence to be introduced which indicates that the party offering it can produce better evidence. It does not require the strongest possible evidence, or all the evidence of which the case is capable, but excludes only that evidence the nature of which indicates the existence of better and more original sources of information. For example, a title by deed must be proved by the production of the original instrument itself, if it is within the power of the party; its execution and delivery may then be proved by any one who witnessed the same.

SECTION 9. PRE-REQUISITES TO EXCLUSION.

Before evidence can be excluded as secondary, it must appear from the facts sought to be proved, or by the objector's evidence, that there is evidence of a higher order in existence, and of what it consists, and that it is competent, relevant and material to prove the fact, and that, when produced, it would more conclusively establish the fact sought to be proved than the evidence submitted.

SECTION 10.

EXCEPTIONS.

This rule is subject to exceptions when the gen