CHAPTER IV. GENERAL PROVISIONS. SECTION 1655. Appeals from final orders in county court. 1656. Manner of the appeal. 1657. General rules as to certain special proceedings. 1658. General rule as to amendments in special proceedings. § 1655. From the judgment of a county court, in any special proceeding, except when otherwise expressly prescribed by this code, an appeal may be taken to the supreme court, and thence to the court of appeals. § 1656. The appeal must be taken in the same manner, within the same time, and upon the same security, as an appeal from a judgment at a general term of the county court, in a civil action commenced therein, except as otherwise expressly provided by a particular provision of this code. § 1657. In special proceedings where the costs are not by this code defined, the court may, in its discretion, require costs to be paid by any party to another, or to be paid from the fund which is the subject of the proceeding. The costs allowed must be a fixed sum, to be determined by the court, on the hearing, or afterwards on motion, and must not exceed the rate of costs allowed for similar services in actions. § 1658. Amendments, in furtherance, of justice may be allowed by any court or judicial officer in a special proceeding before him, in every stage thereof, upon such and a terms as to costs or otherwise, as may be proper; substitution may, in the same manner, be allowed of a successor in interest, in place of a party, when by reason of death or other cause it becomes proper. PART IV. OF EVIDENCE. TITLE I. Of the general principles of evidence. III. Of the production of evidence. IV. Of the effect of evidence. V. Of the rights and duties of witnesses. VI. Of evidence in particular cases and miscellaneous and general provisions. GENERAL DEFINITIONS AND DIVISIONS. SECTION 1659. Definition of evidence. 1660. Definition of proof. 1661. Definition of law of evidence. 1662. The degree of certainty, required to establish facts. 1663. Four kinds of evidence specified. 1664. Several degrees of evidence specified. 1665. Original evidence, defined. 1666. Secondary evidence defined. 1667. Direct evidence defined. 1668. Indirect evidence defined. 1669. Primary evidence defined. 1674. Cumulative evidence defined. This, the only remaining part of the code, embraces the subject of evidence. Large and difficult as is the subject, we cannot omit it from this work, without presenting to the legis lature an incomplete code of procedure. As we interpret the constitutional and statutory provisions, under which we act, our commission includes the whole procedure, in civil and criminal cases. To omit the subject of evidence would therefore imply, either that it did not fall within the scope of a code of procedure, or that it was in its nature incapable of being reduced to a written code. We have referred to the subject in our communications to both the legislatures, to which we have already reported. In the report of 1848, we took occasion to say, that "the courts of justice and all their officers, the time within which actions must be commenced, the mode of bringing the parties before the court, their respective allegations, the trial of disputed questions of fact and of law, the summoning of witnesses, and the manner of their examination, including the question of their competency, and the rules of evidence, the judgment to be rendered, the execution of the judgment, and appeals, together with the immense mass of special proceedings known to our law, prerogative, and remedial writs, arbitrations, the processes against absent and insolvent debtors, and a revision of the practice, pleadings and proceedings in criminal cases, all appear to be embraced in the comprehensive language of the constitution. Acting upon this view, it is the design of the Commissioners to prepare a code of procedure which shall comprehend the whole law of the state, concerning remedies in the courts of justice." This declaration was reiterated at the last session, in our answer to a resolution of the senate, and in our report to the legislature; and with these views before them, they continued the commission to the present time. In accordance, doubtless, with the same view of the subject, the legislature of Massachusetts, at their last session, following the example of New-York, passed a resolution, for the appointment of three commissioners, " to revise and reform the proceedings in the courts of justice, in the commonwealth, except in criminal cases," and directed, "that the duties of the commissioners shall embrace the consideration and revision of the mode of bringing the parties before the court; all their respective allegations; the trial of questions of fact and of law; the summoning of witnesses; the question, also, who may be witnesses, and who may be compelled to give testimony; the manner of their examination, and the competency of the same; the judgment to be rendered, its execution, appeals, arbitrations, prerogative and remedial suits, and all processes against absent and insolvent debtors." It appears to us that the subject 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, of which the latter has been confided to our commission; the former to a different one. 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 philosophical and legal writers. Bentham's Rationale of 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 fulfilment of the predictions delivered, of the engagements taken, by the 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 |