PART IV.

OF EVIDENCE.

PART IV.

OF

EVIDENCE.

GENERAL DEFINITIONS AND DIVISIONS.

SECTION 1823. Definition of evidence.

1824. Definition of proof.

1825. Definition of law of evidence.

1826. The degree of certainty required to establish fac.

1827. Four kinds of evidence specified.

1828. Several degrees of evidence specified.

1829. Original evidence defined.

1830. Secondary evidence defined.

1831. Direct evidence defined.

1832. Indirect evidence defined.
1833. Primary evidence defined.
1834. Partial evidence defined.
1835. Satisfactory evidence defined.
1836. Indispensable evidence defined.
1837. Conclusive evidence defined.
1838. Cumulative evidence defined.
1839. Corroborative evidence defined.

NOTE.-"The subject of evidence properly belongs to the department of procedure. The great line of division in the law is between the department of rights and the department of remedies. A complete Code of procedure must furnish a guide to the suitor for every step he takes, from the beginning to the end of his controversy; in short, he ought to find in it the whole law of remedies. How can he do this, unless he find the rules which inform him what witnesses he may bring, the method of producing them, and of the examination to which they may be subjected? Can it be said with any propriety that the subject of evidence belongs to the code of rights? Then, is not its appropriate place in the code of remedies? It is so classed by philo

Judicial Evidence, the most profound and original work ever written upon this subject, proceeds upon that classification: The system of procedure,' says he, ‘judicial procedure, the system of adjective law, is a means to an end. That end is or ought to be the execution of the commands issued, the fulfillment of the predictions delivered, of the engagements taken, by a system of the substantive law; the system composed of all the other branches of the body of law put together.

"The law respecting evidence is one branch of that system of adjective law; it therefore ought to be, and everywhere in some degree is, one part of the means directed and applied to the attainment of that end. In proportion to the steadiness and consistency with which it does act in subservience to that end is its congruity, its propriety, its fitness, the claim it has to be approved of and preserved unchanged.'-Vol. 4, p. 477.

"That the law of evidence is not capable of being reduced into a written code cannot be permitted for a moment. It is too late, after the discussions and achievements of the last half century, now to insist that there is any part of the unwritten law which cannot be reduced to a written code. Though not written in statutes, it is yet written in books, whether books of reports or elementary writers; it does not depend upon tradition; it is not handed down from memory or through successive generations, as if there were no written language; but it is preserved in writing. Whatever has been once written can be written again; wherever scattered it can be found, gathered, digested, reconciled, and arranged in one book, consisting of a series of propositions. Such a book is a code. The codes of other countries have been thus framed. It was not expected, it could not be expected, that they would come forth perfect at first; but time and experience wrought the necessary amendments, and the results are great

national works.

"One of the most distinguished members of the Council of State under Napoleon, and one who bore a part in a revision of the French Codes, Count Real, wrote a few years since, to the late eminent reformer, William Sampson, of New York, in these terms:

"Courage; persevere in the support of written reason against precedents and vague traditions. If law had no foundation but precedents, all crimes and inju ries would have remained unpunished and unredressed from the creation until this day. The first judgment must have been guided by reason. Has reason lost its

power? Precedents have been made by lawyers as
articles of faith by divines. But whatever respect I
may entertain for religion, I have not the same rever-
ence for the decisions of Judges. I do not believe that
the march of the human mind is retrograde.

Do as we did, but do it better, profiting by our mis-
takes. Let four or five good heads be united in a com-
mission to frame in silence the project of a Code. It is
not so difficult a task. It is only to consult together
and to select. Do with your best authors as we did
with ours, and principally with Pothier's Treatise on
Obligations, which we simply converted into articles of
our Code. This project once formed, submit it dispu-
tationibus eorum and you come to a result. As long
as nothing is written nothing will be done; but you will
gain something the moment you have a written text for
the groundwork of your discussions, how imperfect
soever it may be at first. Our Code was far from being
adopted as it was originally proposed in the entire. I
doubt whether one hundred articles were preserved in
the form in which they were presented. It will require
ardent hearts, and cool heads, and resolved industry, for
such a work. With these, I think you will not fail of
complete success.'"-Report of N. Y. Code Commis-
sioners on N. Y. Code of Civil Procedure.

In 1851 the Legislature of this State adopted the
major portion of the provisions of the New York Code
relating to evidence, and incorporated the provisions so
adopted into the Practice Act. The Commissioners
have taken those provisions and made them the basis
of part IV of this Code, and have supplied the omitted
portion.

of evidence.

1823. Judicial evidence is the means, sanctioned Definition by law, of ascertaining in a judicial proceeding the truth respecting a question of fact.

NOTE.-Evidence in legal acceptation includes all the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved.-Schloss vs. His Creditors, 31 Cal., p. 293; 1 Greenleaf on Evidence, p. 1; Wills on Circumstantial Evidence, p. 2; 1 Starkie Evidence, p. 10; 1 Phillips Evidence, p. 1.

of proof.

1824. Proof is the effect of evidence, the estab- Definition lishment of a fact by evidence.

NOTE.-There is an obvious difference between the words evidence and proof. Evidence, in its legal accep