Encyclopaedia Americana: a popular dictionary of arts, sciences, literature, history, politics and biography, brought down to the present time : including a copious collection of original articles in American biography : on the basis of the seventh edition of the German Conversations-Lexicon (Volume 5).

Date:: 1830-33

Credit: Encyclopaedia Americana: a popular dictionary of arts, sciences, literature, history, politics and biography, brought down to the present time : including a copious collection of original articles in American biography : on the basis of the seventh edition of the German Conversations-Lexicon (Volume 5). Source: Wellcome Collection.

Provider: This material has been provided by the National Library of Medicine (U.S.), through the Medical Heritage Library. The original may be consulted at the National Library of Medicine (U.S.)

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$sufficient, even in cases of treason. Tliird- ly, in couilsofequity, the answer of the de- fendant (heing under oath),as to facts which it positively and clearly denies, will prevail, unless disproved by two witnesses or one witness and corroborative circumstances. A single witness, wthout such circumstan- ces, is insufficient. In suits at law, the rule is otherwise ; and a single witness liere suf- fices in ordinary cases. The practice in courts of ecclesiastical jurisdiction is, in this respect, like that of the courts of equity. III. In respect to ivritlcn evidence. This is divisible into various sorts:—1. Statutes or acts of the legislature. These, i{ of a public nature, are evidence without any particular proof, for the judges are bound to take notice of them as the law of the land. They are deemed records, and of such a high nature, that they cannot be contradicted; for it is a general rule, that a record is conclusive proof, that the judgment or decision was made as is therein stated. But judicial tribunals will not take notice of private acts of the legis- lature ; and therefore, unless made evi- dence by some special law, they are ad- missible in proof only by a properly authenticated copy. But when so proved, they, as mattei-s of record, cannot be con- tradicted. 2. Judgments. Those of the superior courts of law are matters of rec- ord, and are also conclusive. Generally speaking, verdicts and judgments are evi- dence in cases between the parties to the suit and privies ; but they are not evi- dence in cases between strangers. When the judgment is directly ujjou the point, it is a bar between the same parties, and their privies, and may be pleaded as an estoppel. And in cases, where it need not be so pleaded, it is, as evidence, con- clusive between the same parties and their privies. But it is not evidence of any matter, which came collaterally in ques- tion in the suit, nor of any matter inci- dentally cognizable, nor of any matter of inference from the judgment. There are some exceptions to the general rule. a. The judgment in a suit l^etween strangers is sometimes admissible, as the record of a judgment against a principal, who has been convicted of a felony, may be given in evidence against an accessorj'. b. Judg- ments of courts of a peculiar and exclu- sive jurisdiction are sometimes conclu- sive upon all persons. Thus judgments m rem, in cases of seizures by the ex- chequer and other courts having exclusive jurisdiction, are conclusive. So sentences of courts of admiralty in matters of prize, and in rem, at least as to the direct effect of such sentences in changing the prop- erty. So sentences of ecclesiastical courts in cases of which tliey have exclusive jurisdiction, c. Judgments hi cases of general rights, as of a right of common, a public right of way, a custom, a pedigree, &c., are admissible as evidence of such right, custom,&c., in suit between third per- sons.—3. There are other judicial ])roceed- ings, which are not strictly matters of rec- ord, as decrees in chancery, and judgments in inferior courts, to which, however, the same general principles ap|)ly, as matters of evidence, as to judgnicnts of record.— 4. Depositions also, awards, and examina- tions by magistrates, are often evidence in cases between the same parties. There ai-e also cases, in Avhich jiublic writings not judicial, such as journals of parlia- ment, public gazettes, rate or tax books, ship's registers, rolls of manor courts, cor- poration books, and books of public en- tries, &c. &c., are evidence. But to go at large into the distinctions applicable to them would occupy too much space. V. In respect to private writings, the rules api)lied to oral testimony are gene- rally applicable here. Such writings are ev- idence between parties and privies, but not between strangers, except under the limita- tions already stated. There are some few cases, in which the written statements of the party himself may be given in evidence, in his own favor, such as, for instance, his account books, to verify charges made by him in respect to debts and charges, which are properly matters of account, such as debits and charges for goods sold, for labor and sen ices, and for materials fur- nished. But the most common question, that arises in respect to written instru- ments relates to the mode of proving them to be genuine, or what they purport to be. When the original instrument is produced, if it is objected to, and there is a witness, who subscribed it, he must be called to prove the due execution of it by tlio party, whom it puqiorts to bind. If the witness be dead, or out of the countiy, the handwriting of the witness must be prov- ed by some pei-son acquainted with it, and then it will be presumed, that the Avit- nesssawthe due execution of it; and it is evidence without further proof. If there is no witness who subscribed it, the hand- writing of the party who executed it may be proved by some person who is ac- quainted with it. But it is not sufficient to prove it by comparison of the hand- writing with the luiown handwriting of the party, though such evidence may be admitted in some cases as corroborative$

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