Page:Encyclopædia Britannica, Ninth Edition, v. 8.djvu/778

Rh 742 EVIDENCE corporations, e.g., of London, of the universities, also of the beginning and termination of war, and the articles of war, the extent of her majesty s dominions, the divisions of time, the meaning of English words, &c. (see Stephen s Digest, pt. ii. c. 7.) And, of course, facts which have been admitted for the purposes of the trial by the parties or their agents need not be proved. All other facts must be proved, either by oral or documentary evidence. Oral evidence is the testimony of a witness delivered before the court as to what he has himself actually seen or heard. All facts may be proved by oral evidence, except in some special cases where the law requires documentary evidence. A &quot; document,&quot; in this sense, extends to any record, whether expressed in writing or symbols, and no matter what may be the nature of the substance on which it is recorded. A gold watch with an inscription on it, or a tombstone, is a document. The most important rule in this branch of the subject is that which requires the contents of a document to be proved by the document itself. The law requires the &quot; best evidence &quot; procurable in each case, and if a document is in existence it is better evidence than any second-hand account of its contents. This is called primary evidence. But secondary evidence, either by means of written copies or oral accounts, is to be admitted in certain cases. If it is proved that the instrument has been lost or destroyed, or that it is in the hands of the opposite party, who, after notice, has refused to produce it, then &quot; secondary &quot; evidence of its contents may be given. So when the original is of such a nature that it cannot be easily moved (as, e.g., a libel written on a wall), secondary evidence may be given. Secondary evidence includes (besides oral accounts by persons who have seen the original) (1) examined copies, exemplifications, office copies, and certi fied copies ; (2) other copies made from the original and proved to be correct ; (3) counterparts of documents as against the parties who did not execute them (Stephen, Digest, part ii., c. 9). Public documents in general must be proved either by the production of the original or by the official copies in class (1) above. Stephen states the rule requiring documentary evidence in special cases as follows : &quot;When any judgment of any court or any other judicial or official proceeding, or any contract or grant, or any other disposition of property, has been reduced to the form of a document or a series of documents, no evidence may be given except the document itself, or secondary evidence&quot; where such is admissible. The importance of this rule with reference to contracts will be at once apparent. When the contract has been reduced to writing, parole (or oral) evidence cannot be admitted to prove its contents. The writing itself, or secondary evidence, must be produced, and no variation of its terms can be proved by oral evidence. Thus, where goods were insured generally in ships from a particular port, and the ship in which they were shipped was lost, evidence could not be given that that particular ship was excepted from the policy. The mere fact that a memorandum was made, not intended to have effect as a contract, will not exclude oral evidence of the transaction. And certain facts, collateral to the contract, may be proved by oral evidence. Thus fraud, or want of consideration, or any circumstances which would affect its validity, maybe so proved. Of course, in the interpretation of contracts containing doubtful, technical, or unintelligible expressions, or using common words in a non-natural sense, recourse must be had to oral evidence. Thus the expression a &quot;bale of gambier,&quot; in a written contract, may be proved by verbal evidence to mean a compressed package weighing two cwt. And where the expression &quot;ten thousand rabbits&quot; occurred m a lea.se, evidence to show that a thousand, iu relation to rabbits, meant twelve hundred, was admitted. But when the document is utterly unmeaning (as where a legacy is left to ), oral evidence cannot be resorted to for the purpose of supplying a meaning. Where more than one meaning is possible, reference may be to the surround ing circumstances, or the fact to which the document was or may have been intended to refer. These rules, it need hardly be said, apply only as between parties, and where the legal rights and obligations dependent on the instru ment are in question. Certain presumptions (i.e., conclusions of fact adopted until they are disproved) relating to documents may be mentioned here. Thus a document is presumed to have been executed on the day on which it bears date. Again, where a document is not produced after due notice, it is presumed to have been duly stamped. And it is a most important presumption with reference to documents pur porting and proved to be thirty years old, and produced from what appears to be the proper custody, that the signatures, execution, and attestation are as they purport to be. Or, as it is sometimes expressed, when a deed is thirty years old, it proves itself.&quot; Alterations and interlineations in a deed are presumed to have been made before execution; in a will they are presumed to have been made afterwards. The nature of such presumptions is explained below. One more rule with regard to documentary evidence may be added. When the law requires an instrument to be attested (e.g., a will), it cannot be used in evidence unless one attesting witness is called to prove its execution, if there be an attesting witness alive and capable of giving evidence. If there be no such witness, the signature of at least one attesting witness, and of the person executing the deed, must be proved to be in their respective hand writings. This rule was said by Lord Ellenborough to be as &quot; fixed, formal, and universal as any that can be stated in a court of justice.&quot; It formerly extended to all docu ments actually attested, not merely to those required to be attested by law. 3. Burden of proof, competency of witnesses, &amp;lt;bc. The general rule is that the burden of proof lies on the person who asserts the affirmative, or, as it is more accurately ex pressed by Sir J. Stephen, &quot; whoever desires any court to give judgment, as to any legal right or liability dependent on the existence or uon-existence of facts which he asserts or denies to exist, must prove that these facts do or do nob exist.&quot; And the burden of proof, and the right of begin ning in an action, lie on the party against whom judgment would be given if no evidence at all were offered iu the case. Again, the effect of a presumption (presumptio facti, as distinguished from presumplio juris or conclusive proof) is to throw the burden of proof on the party who denies it as a matter of fact. And here it may be convenient to say a word or two with reference to presumptions. Writers ou the law of evidence generally distinguish between presump tions of law and presumptions of fact the latter being, the former not being, rebuttable by counter-evidence. The subject occupies a considerable space in most books on evi dence. Sir J. Stephen regards it as falling properly under specific divisions of the substantive law. Thus the pre sumption that everybody knows the law he regards as be longing to the criminal law and not to the law of evidence. Presumptions of this sort (presumptiones juris et de jure] are an indirect way of expressingsome legal principle. In th&amp;lt; last case the rule is that ignorance of the law is no excus* for an illegal act, and the so-called presumption looks lib an artificial and characteristic reason invented for its ex planation. Presumptions of fact, i.e., conclusions which o; | certain evidence must be adopted by the court until an !j unless they are disproved by counter-evidence, are cases i | which the task of inference is taken out of the hands, c jl