Open main menu

Page:Harvard Law Review Volume 1.djvu/256

This page has been proofread, but needs to be validated.

evidence is the corresponding noun. In our early law it had the same meaning as it did in Norman-French, and was used to denote writings or documents, as they spoke for themselves. In Smith’s “Commonwealth of England,” Book Ⅱ., chap. 18, is an instance of this use.

The word gradually acquired a broader meaning, and in chap. 26 of the same book it is used to include “indices or tokens.”

For a long time, however, it has had its present meaning, as may be seen in Finch’s “Common Law” (1654), Book Ⅲ., chap. 1, where it is defined as “anything whatsoever which serves the party to prove the issue for him.”

Bentham’s definition, as modified by Best, “Evidence is any matter of fact, the effect, tendency, or design of which is to produce in the mind a persuasion, affirmative or disaffirmative, of the existence of some other matter of fact,” is perhaps a good one, but requires a definition of fact. This can be defined by nothing narrower than anything whatever looked at from a certain point of view; that is, as something on which to base an inference. For legal use it must be narrowed by excepting all reasoning in regard to the law of the jurisdiction in question. Evidence does not include this, nor does it include such facts as are taken for granted.

Whatever, therefore, must be shown to the Court is the subject-matter of evidence. As thus used it may include the persons of the witnesses, as well as what they testify, and also any object shown to the jury,—what Bentham and Best call real evidence.


Statute of Limitations. Joinder of Times by Successive Disseisors. — (From Prof. Gray’s Lectures.) — The consecutive possessions of successive independent disseisors, although without privity of estate between them, can, perhaps, be tacked together to give the continuity of disseisin required by the Statute of Limitations. Thus, if A adversely occupies B’s land for ten years, and is then disseised by C, C, after ten years’ additional adverse occupancy of B’s land, will have a good defence in an action of ejectment brought against him by B.

The case is not analogous to the acquiring of title to an incorporeal hereditament by prescription. The adverse user of an easement for the prescribed time gains an absolute title to the easement. To gain this title it is necessary that the adverse use should be continued for the, entire time, either by the same person, or by successors who represent the same persona or estate. Therefore, if A, after adversely using a right of way for ten years over his neighbor’s land is disseised by C, the disseisor, after ten years continued adverse user of the right of way, will have gained no title to the easement; a disseisor does not represent the persona of the previous estate, and cannot tack his time to that of his predecessor. (Holmes’ Common Law, 368, and cases cited.)

The effect of the Statute of Limitations is different. The Statute 21 Jac. I. c. 16, from which our Statutes of Limitations as to ejectment are commonly copied, provided [S. I. (4)] that “no person or persons shall at any time hereafter make any entry into any lands, tenements, or hereditaments, but within twenty years, next after his or their right or title, which shall hereafter first descend or accrue to the same; and in default thereof such persons so not entering, and their heirs, shall be utterly excluded and disabled from such entry after to be made.”