Page:The American Cyclopædia (1879) Volume VII.djvu/15

 EVIDENCE by untruthful statements might be the strong- est possible. But husband and wife were not admitted to testify for or against each other, for which two reasons were principally as- signed: 1, that it would tend to destroy the domestic harmony ; and 2, that the wife was under such coercion of the husband as would be likely to lead her to distort or suppress the truth. An exception, from the necessity of the case, was made of prosecutions for injuries done or threatened by one against the other. The conviction at length became general that the exclusion of witnesses on account of inter- est worked injuriously, and accordingly, both in England and the United States, the system has been virtually abrogated. By statute 3 and 4 William IV., c. 42, it was provided that no person offered as a witness should be excluded on the ground that the verdict or judgment in the action could be used for or against him. .The act 6 and 7 Victoria, c. 85 (1843), provided that no one, except a party, or the husband or wife of a party, should be excluded from testi- fying on the ground of interest in the subject of the action or event of the trial. The act 14 and 15 Victoria, c. 99 (1851), enacted that par- ties and persons on whose behalf a suit is brought or defended shall be competent and compellable to testify as witnesses for either party, except that in criminal proceedings for an indictable offence neither the party charged nor the husband or wife of such party could be a witness ; and except also that the provision should not apply to actions founded upon adul- tery, or for a breach of promise of marriage. By a subsequent act, 16 and IV Victoria, c. 83 (1853), the husband or wife of a party in a civil action was made competent as a witness except in cases of adultery, but with the quali- fication that such witness should not be bound to disclose any confidential communication made by either to the other during marriage. In the United States similar provisions have very generally been adopted ; and as a rule all persons having knowledge of material facts are competent and compellable to testify, except husband and wife against each other, and the defendants in criminal proceedings. The for- mer, however, are allowed to be witnesses for each other, and by consent may be called by the opposite party. In a number of the states the defendants in criminal cases are allowed either to testify in their own behalf under oath, or to make a statement without oath which the jury may receive as evidence ; but constitutional provisions forbid their being com- pelled to testify against themselves. The third of the classes into which we have divided the rules of evidence consists of presumptions of law in lieu of actual proof, or of what could be proved, under which may be specified the following : a. The statutes of limitation, by which a period of time is fixed when a debt shall be presumed to have been paid, or satis- faction to have been received. This sort of presumption is made not for want of actual proof, as the period is usually short, but to put an end to controversy within a reasonable period. The current business of life has enough to employ our attention without our being bur- dened with the memory of all former transac- tions. (See LIMITATION, STATUTES OF.) I. Es- toppels. A man is said to be estopped when it would be inconsistent with good faith or with the policy of the law to allow him to deny a certain fact or legal conclusion. Thus, if he claims under a deed or will, he is bound by all that is contained in it, and is estopped either from denying any recital therein, or from set- ting up any claim of title adverse to or incon- sistent with such deed or will. An estoppel in pais, as it is called in the old cases, is when a man is precluded by his own act or admission from proving anything contrary thereto. An instance of this is when a man has by some* statement or admission induced another with whom he was dealing to enter into a contract ; he will not afterward be permitted to deny the truth of such statement or admission if the ef- fect would be to work an injury to such third party. So a tacit admission, as when the owner of a chattel stands by while another sells it as his own, and neglects to give notice of his right ; this will operate as an estoppel to his setting up his claim against the innocent purchaser. To this head also belongs what is called resjudicata, that is to say, the rule that when a fact necessarily involved in an action is once determined it shall not afterward be called in question as between the same parties or per- sons claiming under them. A judgment or de- cree of a competent court is final not only as to what was actually determined, but as to every matter which was involved in the issue, and which could have been decided. The record of the judgment is the only proper evidence of what was in issue, and it cannot be proved aliunde that some matter was in fact involved and taken into consideration which does not appear by the record to have been involved in the issue. This is the rule as to decisions of tribunals in our own country. In respect to foreign judgments and decrees, the effect is the same when the court had jurisdiction of the case, and no fraud has been practised. The record itself, which must be produced, is not conclusive as to facts necessary to give juris- diction, and a defendant will be permitted to prove that he was not personally served with process ; so any fraud on the part of the court or its officers may be shown. But the regu- larity of the judgment having been established, it is conclusive upon all matters embraced in the issue. The fourth class in the arrangement we have made of our subject, viz., the comparative weight of evidence, is of a twofold character. Judicial discrimination may lead to the rejec- tion of testimony as being entitled to no weight at all, or it may determine the relative influ- ence which it should have if admissible in the decision of a question of fact. The former we have already considered, so far as respects