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development of the state, and which are generally known and regarded as true; (5) Natural history, comprising such facts in nature as are permanent and uniform, and do not require special investigation in order to discover them, such as the number of days in a given month, the succession of the seasons, and the coincidence of week-days with certain days of the month and year; (6) The vernacular language, or the meaning of all common English words, and of such terms in art as are of ordinary use. Of all these facts courts take judicial notice, and regard them as established without further proof. All other facts, whether material or relevant, must be established by legal and sufficient evidence.

Read 1 Starkie Ev., pp. 735-741.

1 Greenleaf Ev., §§ 4-6.

§ 294. Of Written and Oral Evidence.

Evidence, as to its form, is of two kinds: Written and Oral. Written evidence consists of public and judicial records, deeds, bonds, and other instruments in writing. Written evidence is admissible, whenever the fact in question is the existence of the instrument itself, or whenever the contents of the instrument are legally sufficient to establish some material or relevant fact. Oral evidence consists of the viva voce statement of a witness, who is duly sworn and subjected to examination. Oral evidence is admissible only when the witness can testify, from his personal knowledge, as to the existence or non-existence of some material or relevant fact, or when he is called, as an expert, to testify to his opinion.

Read 3 Bl. Comm., pp. 367-369.

1 Starkie Ev., pp. 96, 102, 255.
1 Greenleaf Ev., §§ 306-308.

§ 295. Of Primary and Secondary Evidence.

The existence and the contents of a written instrument may be proved by the production of the instrument itself, or in certain cases where this cannot be done, by a properly attested copy, or where no copy even can be had, by oral evidence. The instrument itself is primary evidence of its existence and its contents; copies and oral evidence are secondary evidence; and secondary evidence is inadmissible, whenever primary evidence can be produced. The meaning or construction of an instrument is a matter for the decision of the judge, and oral evidence that the maker of the instrument did not himself mean what the instrument, as so interpreted, expresses is inadmissible.

Read Bac. Abr., Evidence F, G, I.

Com. Dig., Testmoigne - Evidence.

2 Tidd Prac., pp. 849-855..

1 Starkie Ev., pp. 255–583, 642–733.

1 Greenleaf Ev., §§ 82–97, 275–305, 470–583.

§ 296. Of Depositions.

Oral evidence is usually produced in open court, in the presence of the jury. Where this is impossible, by reason of the sickness of the witness or other cause, it may be taken in writing by some person, appointed for the purpose by the court, or authorized to do so by the general rules of law. The evidence, thus written, is called a deposition, and is read in court to the jury as the testimony of the witness.

Read 2 Tidd Prac., pp. 860-863.

1 Starkie Ev., pp. 409-434.
1 Greenleaf Ev., §§ 320–325.

§ 297. Of Subpoenas. Subpoenas Duces Tecum.

The process, by which witnesses are summoned to appear and testify, is known as a subpoena. When written instruments, in the possession of a third person, are needed as evidence, he may be summoned to appear and produce them, by a process known as a subpoena duces tecum. If such instruments are in possession of the opposite party, notice may be given to him to produce them, and if he refuse, secondary evidence of their existence and contents may be given.

Read 3 Bl. Comm., p. 369.

Bac. Abr., Evidence D.
2 Tidd Prac., pp. 855-860.
1 Starkie Ev., pp. 103–114.
1 Greenleaf Ev., §§ 309–319.

§ 298. Of the Competency of Witnesses.

Any person, who understands and recognizes the obligations of an oath, is a competent witness, unless disqualified by positive law. Formerly, all those who had been convicted of certain infamous crimes, and all those who were interested in the merits of the controversy, were so disqualified; but such interest or conviction is now regarded as affecting the credibility, rather than the competency, of a witness.

Read 3 Bl. Comm., pp. 369, 370.

Bac. Abr., Evidence A 4-6, B.
Com. Dig., Testmoigne

Witness.

1 Starkie Ev., pp. 22–34, 114–146.

1 Greenleaf Ev., §§ 326-333, 347-430.

§ 299. Of Confidential Communications.

With few exceptions, any witness may testify to any material or relevant fact within his personal knowledge.

But husband and wife are not allowed to testify against each other, unless in actions where some personal injury, inflicted by one upon the other, is the subject-matter of the controversy.) Public officers are not permitted to testify to any secret affairs of state, or to any matters which the public interest requires to be concealed. Counsel are not allowed to testify to any matter confided to them by their clients, nor can a client be compelled to disclose any communication passing between himself and his counsel. No witness can be compelled to reveal matter, which would expose him to prosecution for a criminal offence, or to any public penalty or forfeiture.

Read 3 Bl. Comm.,

p. 370.

Bac. Abr., Evidence A 1-3.

1 Starkie Ev., pp. 39-42.

1 Greenleaf Ev., §§ 236–254 a, 334–346.

300. Of Hearsay Evidence.

With few exceptions also, no witness is allowed to testify to statements, made to him or in his presence by other persons. Among these exceptions are the following: (1) Where the making of the statement is itself a material or relevant fact; (2) Where the statement was made by a party-litigant, or his agent, or some person in whose right he claims, and is an admission or a declaration against his interest; (3) Where the statement was a dying declaration, made under apprehension of immediate death by a person alleged to have been killed by another, and describing the method and the perpetrator of the homicide; (4) Where the statement was made by a person, since dead, insane, or beyond the reach of a subpoena, who at the time was testifying under oath in the same action, or in another action involving the same issues between the same parties, or their representatives in interest; (5)

Where the statement was made by a person, since deceased, in the ordinary course of business, or in the discharge of some professional duty, or in reference to the existence of some public right or custom and while no dispute concerning such right or custom existed; (6) When the statement was made by a person, since deceased, concerning relationship, births, deaths, or marriages, provided these facts are actually in issue, and the statement was made by the blood-relative of the person to whom they relate, or by the wife or husband of such blood-relative, and was also made before the facts themselves became matter of dispute; (7) When the statement was made by a testator, since deceased, concerning the contents of his will, and the will, though proved to have once existed, cannot now be found; (8) When the statement was made by a person, who, having been called as a witness in the same action, has testified inconsistently therewith; (9) Where the statement was made by a person, who, at the same time, performed some act, which has been shown in evidence, and which this statement is calculated to explain. Statements, not embraced in these exceptions, are known as hearsay, and are inadmissible.

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§ 301. Of the Examination of Witnesses.

The examination of a witness is divided into three stages: (1) Direct examination by the party who produces him; (2) Cross-examination by the adverse party; (3) Re-direct examination by his first examiner. The rules, which govern the direct examination, are few and simple. The witness

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