Page:The American Cyclopædia (1879) Volume VII.djvu/16

8 EVIDENCE the incompetency of witnesses and the exclu- sion of hearsay testimony. But evidence is sometimes excluded for reasons of more limited application. Thus, inferior testimony is not admitted when a party has it in his power to produce what is of a higher order ; as if the question be as to the title to real estate derived from a deed, the best proof will of course be the production of the deed itself, and no other proof will be admitted as a substitute, unless a satisfactory reason is given for its non-produc- tion, as where it has been lost or destroyed. But in this case, the substituted evidence must be exclusively as to the contents of the deed. But where under statutes providing therefor conveyances of real estate are recorded, the record or a certified copy is allowed to be read in evidence with the same effect as the original. So when a contract is in writing, it is necessary to produce the writing itself, and no other evi- dence can be given of the terms of such con- tract, without showing first the loss of the writing, or that for some other satisfactory reason it is impracticable to produce it ; upon making which proof, parol evidence may be given as to the contents. And whenever, in the course of a trial, a fact comes in question, the evidence of which is in writing, the same rule is applied, viz., that no other evidence can be admitted than the writing itself if in ex- istence, and if not, then only the substituted proof of its contents. It may however happen that nothing more than the purport can be shown, and not the exact phraseology; and some latitude will be allowed in such case, as by admitting proof of the acts of parties, and other circumstances, but still having in view to get at what was expressed by the writing. It does not follow, however, that when the best or what is called primary evidence cannot be produced, inferior or what is called secondary evidence will in all cases be admitted. Thus, hearsay evidence is in general excluded, even if none better can be procured. Upon the same principle, when a writing is put in evi- dence, it must have effect according to its terms, and parol evidence is not admissible to give it a different construction, or to defeat its operation according to the import thereof; or even if the writing is ambiguous, it cannot be explained by other evidence, if the ambiguity is intrinsic, that is, if the phraseology is per se doubtful. But if the ambiguity arises from something referred to but not fully expressed in the writing, explanation by other evidence is admissible. The latter is designated in law as a latent ambiguity, by which is meant that it does not appear upon the face of the instru- ment, but arises from something extrinsic. So also, when parties to a contract have under- taken to express it in writing, it will be as- sumed that they have expressed the whole, and nothing can be added by parol evidence, so far as relates to what the parties had in view at the time the contract was made. This is in effect saying that the written contract must speak for itself, and will be presumed to con- tain all that was intended at the time, though this contract may be varied by a subsequent parol agreement for good consideration. To the general rule as above stated there are, however, some qualifications. 1. It is admis- sible to explain the subject of the contract and all the circumstances which may properly be supposed to have been had in view by both parties, for the purpose of understanding the phraseology which they may have used. 2. Terms peculiar to a science, profession, art, or trade may be explained by witnesses conver- sant therewith. 3. Parol evidence is admissible to impeach a written instrument, by showing fraud, illegality of the subject matter, or what- ever would operate in law to avoid it. The admissibility of evidence is in judicial proceed- ings a matter of law, and in jury trials is deter- mined by the court. But it is not alone for this purpose that discrimination is required. A question of fact usually involves testimony on both sides, which must be collated, and the relative weight of which must be determined in order to reach a correct conclusion. Usually the court arranges and sifts the evidence in the instructions given to the jury, and it is obvious that without this aid the jury would be incom- petent to analyze the evidence in a complicated case. Since the disqualification to testify by reason of interest has been abolished, the rea- sons which formerly were insisted upon as grounds of such disqualification are still proper to be considered with reference to the credit of the witness. It would be out of place to discuss these reasons at large in the brief sum- mary of principles to which this article is neces- sarily limited. A single case may however be appropriately referred to, viz., the impeach- ment of a witness by direct testimony of other witnesses, showing that he is unworthy of credit. This kind of testimony is peculiar. The inquiry is limited to the general reputation of the witness whose veracity is in question, and the impeaching witness is not allowed to testify to particular facts. The usual course of examination is to inquire what is the gen- eral reputation of the witness as to veracity, and formerly it was permitted then to ask the impeaching witness whether he would believe the other under oath, but the authorities are in this country not altogether uniform as to the latter practice. It may not be improper here to say that the rule as to impeachment of a wit- ness is seldom of use, except where he is no- toriously destitute of principle. A witness is also allowed to be impeached by showing that he has made out of court statements contra- dictory to his evidence in court ; but before these are permitted to be shown his attention is called to them, that he may have opportunity for explanation. We have thus briefly analyzed the general principles of the law of evidence. Our subject would however be imperfectly treated if we should not refer to some of the rules which have more particular relation to