jury; and the experience of the profession adds weight to this deplorable hypothesis. The reliance placed upon the statements of others arises from an instinctive tendency to confide in their veracity, and from our faith in human testimony being on the whole sanctioned by experience. This reliance is increased by corroboration. In spite of the maxim testimonia ponderanda sunt non numeranda, the evidence of three witnesses carries more weight than that of two, i.e., where the three witnesses are independent, and the weight of their evidence has not been lessened by cross-examination or otherwise. It should also be noted, that in estimating the value of evidence more weight should be given in matters of observation to the testimony of an educated than to that of an uneducated man; and that the testimony of a man who swears positively that a certain conversation took place is of more value than that of one who says that it did not, because the evidence of the latter may be explained by supposing that his attention was not drawn to the latter at the time (d). Another ground for reliance on human testimony is its probability, i. e., its accordance with facts previously known and believed. But although probability is useful as an aid to considering the true value of direct evidence, it can seldom with safety be had recourse to alone for the purpose of entirely invalidating direct evidence. As connected with this subject the remarks of Lord Wensleydale may be quoted, that "There is no better criterion of the truth, no safer (d) Chowdry Debi Persad v. Dowlut Sing, 3 Moo. I. A. 357. rule for investigating cases of conflicting evidence, where perjury and fraud must exist on the one side or the other, than to consider what facts are beyond dispute, and to examine which of the two cases best accords with those facts, according to the ordinary course of human affairs and the usual habits of life" (e). It is universally the object of courts to obtain the best evidence. Hence second-hand or hearsay evidence is generally inadmissible; and it is an inflexible rule, that secondary evidence is always inadmissible until the absence of primary evidence has been explained to the satisfaction of the court. Thus, in a dispute on a contract under seal, the deed is primary evidence, and should be produced to show the terms of the contract. As long as it exists, and can be obtained by reasonable diligence, no other written or oral evidence of its contents will be received; but if it be destroyed, or if it cannot be found after proper search, or if an adverse party, holding it, refuse to produce it, after due notice, then either written or oral evidence may be given by any one who is acquainted with the contents of the deed. The rule is the same in the case of written contracts, not under seal. As long as the writing exists it must be produced, if possible; but if it be impossible to produce it, the court may, in its discretion, allow the contract to be proved by secondary evidence. Where direct evidence is not obtainable, and in many cases where it is, the law permits facts to be (e) Mir Asadulah v. Bibi Imaman, 5 Cal. W. R., P. C. 26. proved by indirect evidence, which is usually called presumptive or circumstantial, but is better described as inferential. Even direct evidence, when analysed, is found to be to a certain extent presumptive, as it depends for its weight on a number of circumstantial peculiarities which affect the credibility of the witness or other proof: while it has been asserted that what is termed circumstantial evidence is of a nature identical with direct evidence (f). It is, however, desirable to treat it as differing. Presumptive or circumstantial evidence, as distinct from direct evidence, consists of inferences drawn from established facts, i. e., certain collateral facts being established or assumed, the court either presumes or is asked to presume from these the factum probandum. To give two simple illustrations: If a man be stabbed in a house, and another man be seen running from the house immediately after, with a bloody sword in his hand, the flight, the weapon, and the blood raise, in legal language, a violent presumption that the second man murdered the first (g). Similarly, in larceny, where goods have been stolen by a person unknown, and they have been found shortly after in the possession of the prisoner, juries are always told by judges that on this evidence alone they are bound to convict, unless they are satisfied with the prisoner's explanation of the manner in which he obtained the goods. In dealing with this class of evidence it is necessary to consider the weight which is to be given to the (ƒ) Wills on Circumstantial Evidence, p. 23. upon united force of all the circumstances put together (h). And, as has been remarked by a learned writer (i) (and the remark is universally applicable to all presumptive evidence), it must be admitted that, like every other rule of human institution, it will sometimes fail to guide rightly. Lord Hale mentions a case which he says was tried before a very learned and wary judge, where a man was condemned and executed for horse-stealing, upon proof of his having been apprehended with the horse shortly after it was stolen; and afterwards it came out that the real thief, being closely pursued, had overtaken the man the road, and asked him to hold the horse for him for a few minutes. The thief escaped, and the innocent man was apprehended with the horse (j). In such cases, and generally, it is well to bear in mind, that "where it is sought to establish a theory by circumstantial evidence, all the facts proved must be consistent with the theory; but there must also be some one substantial, credible fact inconsistent with the contrary" (k). Hence it has been decided, that since there can be no larceny of goods unless there be a felonious intention in the taker's mind at the time of the taking, a mere fraudulent conversion of goods by the taker after the taking is no evidence. that he had a felonious intention at the time of (h) Per Lord Cairns, Belhaven Peerage Case, L. R., 1 App. Cas. 279. (i) Russell on Crimes, by Greaves; note by editor. (j) 2 Hale, P. C. 289. (k) Per Willes, J., Great Western Railway Co. v. Rimmell, 18 C. B. 575. taking, because such a misappropriation is consistent with the theory that he had no felonious intention at the time of the taking, but that he conceived the intention subsequently (7). What, then, is meant by the term evidence? In the first place it must be borne in mind that there is a wide distinction between evidence and proof, which is the effect of evidence. "When the result of evidence is undoubting assent to the certainty of the event or proposition which is the subject-matter of the enquiry, such event or proposition is said to be proved" (m). Evidence, then, "includes all legal means, exclusive of mere argument, which tend to prove or disprove any matter of fact, the truth of which is submitted to judicial investigation" (n). There are several divisions of evidence, of which the most important are the divisions into (1) primary and secondary, (2) sufficient and satisfactory, (3) direct and inferential, (4) original and second-hand, or hearsay, (5) oral, documentary and real. The first four divisions will be discussed elsewhere. The fifth, which is a threefold division, explains itself; but an illustration may convey a clearer notion of real evidence to the student: When a knife, covered with blood, is found close to the body of a murdered man, the production of the knife in court is offering real evidence. Finally, it may be remarked that the law of evidence applicable in every case is that of the lex fori. (1) R. v. Christopher, Bell, 27. (m) Whately's Logic, Book iv. ch. iii. s. 1. |