EVICTION. The loss or deprivation which the possessor of a thing
suffers, either in whole or in part, of his right of property in such a thing,
in consequence of the right of a third person established before a compenent
tribunal. 10 Rep. 128; 4 Kent, Com. 475-7; 3 Id. 464-5.
2. The eviction may be total or partial. It is total, when the possessor is
wholly deprived of his rights in the whole thing; partial, when he is deprived
of only a portion of the thing; as, if he had fifty acres of land, and a third
person recovers by a better title twenty-five; or, of some right in relation to
the thing. as, if a stranger should claim and establish a right to some easement
over the same. When the grantee suffers a total eviction, and he has a covenant
of seisin, he recovers from the seller, the consideration money, with interest
and costs, and no more. The grantor has no concern with the future rise or fall
of the property, nor with the improvements made by the purchaser. This seems to
be the general rule in the United States. 3 Caines' R. 111; 4 John. R. 1; 13
Johns. R. 50; 4 Dall. R. 441; Cooke's Term. R. 447; 1 Harr. & Munf. 202; 5
Munf. R. 415; 4 Halst. R. 139; 2 Bibb, R. 272. In Massachusetts, the measure of
damages on a covenant of warranty, is the value of the land at the time of
eviction. 3 Mass. R. 523; 4 Mass. R. 108. See, as to other states, 1 Bay, R. 19,
265; 3 Des. Eq. R. 245; 2 Const. R. 584; 2 McCord's R. 413; 3 Call's R. 326.
3. When the eviction is only partial the damages to be recovered under the
covenant of seisin, are a rateable part of the original price, and they are to
bear the same ratio to the whole consideration, that the value of land to which
the title has failed, bears to the value of the whole tract. The contract is not
rescinded, so as to entitle the vendee to the whole consideration money, but
only to the amount of the relative value of the part lost. 5 Johns. R. 49; 12
Johns. R. 126; Civ. Code of Lo. 2490; 4 Kent's Com. 462. Vide 6 Bac. Ab. 44; 1
Saund. R. 204: note 2, and 322 a, note 2; 1 Bouv. Inst. n. 656.
EVIDENCE. That which demonstrates, makes clear, or ascertains the
truth of the very fact or point in issue; 3 Bl. Com. 367; or it is whatever is
exhibited to a court or jury, whether it be by matter of record, or writing, or
by the testimony of witnesses, in order to enable them to pronounce with
certainty; concerning the truth of any matter in dispute; Bac. Ab. Evidence, in
pr.; or it is that which is legally submitted to a jury, to enable them to
decide upon the questions in dispute or issue, as pointed out by the pleadings
and distinguished from all comment or argument. 1 Stark. Ev. 8. 2. Evidence may
be considered with reference to, 1. The nature of the evidence. 2. The object of
the evidence. 3. The instruments of evidence. 4. The effect of evidence. 1. As
to its nature, evidence may be considered with reference to its being 1. Primary
evidence. 2. Secondary evidence. 3. Positive. 4. Presumptive. 5. Hearsay. 6.
4. - 1. Primary evidence. The law generally requires that the best evidence
the case admits of should be given; B. N. P. 293; 1 Stark. Ev. 102, 390; for
example, when a written contract has been entered into, and the object is to
prove what it was, it is requisite to produce the original writing if it is to
be attained, and in that case no copy or other inferior evidence will be
5. To this general rule there are several exceptions. 1. As it refers to the
quality rather than to the quantity of evidence, it is evident that the fullest
proof that every case admits of, is not requisite; if, therefore, there are
several eye-witnesses to a fact, it may be sufficiently proved by one only. 2.
It is not always requisite, when the matter to be proved has been reduced to
writing, that the writing should be produced; as, if the narrative of a fact to
be proved has been committed to writing, it may yet be proved by parol evidence.
A receipt for the payment of money, for example, will not exclude parol evidence
of payment. 14 Esp. R. 213; and see 7 B. & C. 611; S. C. 14 E. C. L. R. 101;
1 Campb. R. 439; 3 B. & A. 566; 6 E. C. L. R. 377.
6. - 2. Secondary evidence. That species of proof which is admissible on the
loss of primary evidence, and which becomes by that event the best evidence. 3
Yeates, Rep. 530.
7. It is a rule that the best evidence, or that proof which most certainly
exhibits the true state of facts to which it relates, shall be required, and the
law rejects secondary or inferior evidence, when it is attempted to be
substituted for evidence of a higher or 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.
8. When primary evidence cannot be had, then secondary evidence will be
admitted, because then it is the best. But before such evidence can be allowed,
it must be clearly made to appear that the superior evidence is not to be had.
The person who possesses it must be applied to, whether he be a stranger or the
opposite party; in the case of a stranger, a subpoena and attachment, when
proper, must be taken out and served; and, in the case of a party, notice to
produce such primary evidence must be proved before the secondary evidence will
be admitted. 7 Serg. & Rawle, 116; 6 Binn. 228; 4 Binn. R. 295, note; 6
Binn. R. 478; 7 East, R. 66; 8 East, R. 278 3 B. & A. 296; S. C. 5 E. C. L.
9. 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.
10. 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, although it appear that an attested copy is in
existence. 6 C. & P. 206; 8 Id. 389.
11. - 3. Positive or direct evidence is that which, if believed, establishes
the truth of a fact in issue, and does not arise from any presumption. Evidence
is direct and positive, when the very facts in dispute are communicated by those
who have the actual knowledge of them by means of their senses. 1 Phil. Ev. 116
1 Stark. 19. In one sense, there is but little direct or positive proof, or such
proof as is acquired by means of one's own sense, all other evidence is
presumptive but, in common acceptation, direct and positive evidence is that
which is communicated by one who has actual knowledge of the fact.
12. - 4. Presumptive evidence is that which is not direct, but where, on the
contrary, a fact which is not positively known, is presumed or inferred from one
or more other facts or circumstances which are known. Vide article Presumption,
and Rosc. Civ. Ev. 13; 1 Stark. Ev. 18.
13. - 5. Hearsay, is the evidence of those who relate, not what they know
themselves, but what they have heard from others.
14. 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 opportunity of cross-examination. 1 Phil. Ev. 185. See, for
other reasons, 1 Stark. Ev. pt. 1, 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.
15. 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;
16. - 6. Admissions are the declarations which a party by himself, or those
who act under his authority, make of the existence of certain facts. Vide
17.- §2. The object of evidence is next to be considered. It is to ascertain
the truth between the parties. It has been discovered by experience that this is
done most certainly by the adoption of the following rules, which are now
binding as law: 1. The evidence must be confined to the point in issue. 2. The
substance of the issue must be proved, but only the substance is required to be
proved. 3. The affirmative of the issue must be proved.
18. - 1. It is a general rule, both in civil and criminal cases, that the
evidence shall be confined to the point in issue. Justice and convenience
require the observance of this rule, particularly in criminal cases, for when a
prisoner is charged with an offence, it is of the utmost importance to him that
the facts laid before the jury should consist exclusively of the transaction,
which forms the subject of the indictment, and, which alone he has come prepared
to answer. 2 Russ. on Cr. 694; 1 Phil. Ev. 166.
19. To this general rule, there are several exceptions, and a variety of
cases which do not fall within the rule. 1. In general, evidence of collateral
facts is not admissible; but when such a fact is material to the issue joined
between the parties, it may be given in evidence; as, for example, in order to
prove that the acceptor of a bill knew the payee to be a fictitious person; or
that the drawer had general authority from him to fill up bills with the name of
a fictitious payee, evidence may be given to show that he had accepted similar
bills before they could, from their date, have arrived from the place of date. 2
H. Bl. 288.
20. - 2. When special damage sustained by the plaintiff is not stated in the
declaration, it is Dot one of the points in issue, and therefore, evidence of it
cannot be received; yet a damage which is the necessary result of the
defendant's breach of contract, may be proved, notwithstanding it is not in the
declaration. 11 Price's Reports, 19.
21. - 3. In general, evidence of the character of either party to a suit is
inadmissible, yet in some cases such evidence may be given. Vide article
22. - 4. When evidence incidentally applies to another person or thing not
included in the transaction in question, and with regard to whom or to which it
is inadmissible; yet if it bear upon the point in issue, it will be re-ceived. 8
Bingh. Rep. 376; S. C. 21 Eng. C. L. R. 325 and see 1 Phil. Ev. 158; 2 East, P.
C. 1035; 2 Leach, 985; S. C. 1 New Rep. 92; Russ. & Ry. C. C. 376; 2 Yeates,
114; 9 Conn. Rep. 47.
23. - 5. The acts of others, as in the case of conspirators, may be given in
evidence against the prisoner, when referable to the issue; but confessions made
by one of several conspirators after the offence has been completed, and when
the conspirators no longer act in concert) cannot be received. Vide article
Confession, and 10 Pick. 497; 2 Pet. Rep. 364; 2 Brec. R. 269; 3 Serg. &
Rawle, 9; 1 Rawle, 362, 458; 2 Leigh's R. 745; 2 Day's Cas. 205; 3 Serg. &
Rawle, 220; 3 Pick. 33; 4 Cranch, 75; 2 B. & A. 573-4 S. C. 5. E. C. L. R.
24. - 6. In criminal cases, when the offence is a cumulative one, consisting
itself in the commission of a number of acts, evidence of those acts is not only
admissible, but essential to support the charge. On an indictment against a
defendant for a conspiracy, to cause himself, to be believed a man of large
property, for the purpose of defrauding tradesmen after proof of a
representation to one tradesman, evidence may therefore be given of a
representation to another tradesman at a different time. 1 Campb. Rep. 399; 2
Day's Cas. 205; 1 John. R. 99; 4 Rogers' Rec. 143; 2 Johns. Cas. 193.
25. - 7. To prove the guilty knowledge of a prisoner, with regard to the
transaction in question, evidence of other offences of the same kind, committed
by the prisoner, though not charged in the indictment, is admissible against
him. As in the case where a prisoner had passed a counterfeit dollar, evidence
that he had. other counterfeit dollars in his possession is evidence to prove
the guilty knowledge. 2 Const. R. 758; Id. 776; 1 Bailey, R. 300; 2 Leigh's R.
745; 1 Wheeler's Cr. Cas. 415; 3 Rogers' Rec. 148; Russ. & Ry. 132; 1 Campb.
Rep. 324; 5 Randolph's R. 701.
26. - 2. The substance of the issue joined between the parties must be
proved. 1 Phil. Ev. 190. Under this rule will be considered the quantity of
evidence required to support particular averments in the declaration or
27. And, first, of civil cases. 1. It is a fatal variance in a contract, if
it appear that a party who ought to have been joined as plaintiff has been
omitted. 1 Sauud. 291 b, n.; 2 T. R. 282. But it is no variance to omit a person
who might have been joined as defendant, because the non-joinder ought to have
been pleaded in abatement. 1 Saund. 291 d, n. 2. The consideration of the
contract must be proved but it is not necessary for the plaintiff to set out in
his declaration, or prove on the trial, the several parts of a contract
consisting 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.
28. - 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 i Leach, 14; 2 Stra. 1133.
29. - 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.
30. - 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' 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, 350.
31. - 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.
32. - 5. The affirmative of the issue must be proved. The general rule with
regard to the burthen 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 into 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; Presum 2 Gall.
R. 485 and 1 McCord, 573.
33. - §3. The consideration of the instruments of evidence will be the
subject of this head. These consist of records, private writings, or
34. - 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.
35. - 2. Private writings are proved by producing the attesting witness; or
in case of his death, absence, or other legal inability to testify, as if, after
attesting the paper, he becomes infamous, his handwriting may be proved. When
there is no witness to the instrument, it may be proved by the evidence of the
handwriting 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
handwriting, 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,
812; 1 Rawle, R. 223; 3 Rawle, R. 312; 1 Ashm. R. 8; 3 Penn. R. 136.
36. Books of original entry, when duly proved, are prima facie evidence of
goods sold and delivered, and of work and labor done. Vide original entry.
37. - 3. Proof by witnesses. The testimony of witnesses is called parol
evidence, or that which is given viva voce, as contra-distinguished from 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
memorial of the particular facts it recites; for by doing so, oral testimony
would be admitted to usurp the place of evidence decidedly superior in degree. 1
Serg. & Rawle, 464; Id. 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.
38. 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. Pl. 4, c. 2.
39. - §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, 2d. The effect of foreign judgments and laws.
40. - 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.
41. The Constitution of 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.
42. - 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, Peake, Greenleaf, and Bouv. Inst. Index, h. t.; the
various Digests, h. t.
EVIDENCE, CIRCUMSTANTIAL. The proof of facts which usually attend
other facts sought to be, proved; that which is not direct evidence. For
example, when a witness testifies that a man was stabbed with a knife, and that
a piece of the blade was found in the wound, and it is found to fit exactly with
another part of the blade found in the possession of the prisoner; the facts are
directly attested, but they only prove circumstances, and hence this is called
2. Circumstantial evidence is of two kinds, namely, certain and uncertain. It
is certain when the conclusion in question necessarily follows as, where a man
had received a mortal wound, and it was found that the impression of a bloody
left hand had been made on the left arm of the deceased, it was certain some
other person than the deceased must have made such mark. 14 How. St. Tr. 1324.
But it is uncertain whether the death was caused by suicide or by murder, and
whether the mark of the bloody hand was made by the assassin, or by a friendly
hand that came too late to the relief of the deceased. Id. Vide
EVIDENCE, CONCLUSIVE. That which, while uncontradicted, satisfies the
judge and jury it is also that which cannot be contradicted.
2. The record of a court of common law jurisdiction is conclusive as to the
facts therein stated. 2 Wash. 64; 2 H. 55; 6 Conn. 508, But the judgment and
record of a prize court is not conclusive evidence in the state courts, unless
it had jurisdiction of the subject-matter; and whether it had or not, the state
courts may decide. 1 Conn. 429. See as to the conclusiveness of the judgments of
foreign courts of admiralty, 4 Cranch, 421, 434; 3 Cranch, 458; Gilmer, 16
Const. R. 381 1 N. & M. 5 3 7.
EVIDENCE, DIRECT. That which applies immediately to the fadum
probandum, without any intervening process; as, if A testifies he saw B inflict
a mortal wound on C, of which he, instantly died. 1 Greenl. Ev. §13.
EVIDENCE, EXTRINSIC. External evidence, or that which is not contained
in the body of an agreement, contract, and the like.
2. It is a general rule that extrinsic evidence cannot be admitted to
contradict, explain, vary or change the terms of a contract or of a will, except
in a latent ambiguity, or to rebut a resulting trust. 14 John. 1; 1 Day, R. 8; 6