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A

TREATISE

ON

THE LAW OF EVIDENCE.

PART IV.

OF THE EVIDENCE REQUISITE IN CERTAIN PARTICULAR

ACTIONS AND ISSUES AT COMMON LAW.

PRELIMINARY OBSERVATIONS.

§ 1. Recapitulation. Having, in the preceding volume, treated, first, Of the Nature and Principles of Evidence ; secondly, Of the Object of Evidence, and the Rules which govern in the Production of Testimony; and, thirdly, Of the Means of Proof, or the Instruments by which Facts are established, - it is now proposed to consider, fourthly, The Evidence requisite in certain Particular Actions and Issues at Common Law, with reference both to the nature of the suit or of the issue, and to the legal or official character and relations of the parties.

§ 2. Summary of topics treated. We have already seen that the evidence must correspond with the allegations, and be confined to the point in issue ; ? that the substance of the issue, and that only, must be proved ;2 that the burden of proof generally lies on the party holding the affirmative of the issue; 3 and that the best evidence of which the nature of the case is susceptible, must be adduced. These doctrines, therefore, will not be again discussed in this place.

$ 3. The issue. The first thing which will receive attention, in the preparation of a cause for trial, will naturally be the issue or 1 Vol. i. pt. 2, c. 1.

2 Vol. i. pt. 2, c. 2. 8 Vol. i. pt. 2, c. 3.

4 Vol. i. pt. 2, c. 4.

proposition to be maintained or controverted. In the early age of the common law the pleadings were altercations in open court, in presence of the judges, whose province it was to superintend or moderate the oral contention thus conducted before them. In doing this, their general aim was to compel the pleaders so to manage their alternate allegations as at length to arrive at some specific point or matter, affirmed on one side, and denied on the other. If this point was matter of fact, the parties then, by mutual agreement, referred it to one of the various methods of trial then in use, or to such trial as the court should think proper. They were then said to be at issue (ad exitum, that is, at the end of their pleading); and the question thus raised for decision was called the issue. In this course of proceeding, every allegation passed over without denial was considered as admitted by the opposite party, and thus the controversy finally turned upon the proposition, and that alone, which was involved in the issue. This method was found so highly beneficial that it was retained after the pleadings were conducted in writing, and it still constitutes one of the cardinal doctrines of the law of pleading.

§ 4. The issue, how formed. It will be observed, that, by the common law, the issue is formed by the parties themselves through their attorneys, the court having nothing to do with the progress of the altercation except to see that it is conducted in the forms of law; and it always consists of a single proposition precisely and distinctly stated. The advantages of this mode over all others in use, especially where the trial is by jury, are strikingly apparent. The opposite to this method is that which was pursued in the Roman tribunals, and which still constitutes a principal feature in the proceedings in the courts of Continental Europe, by which the complaint of the plaintiff may be set forth at large, with its circumstances and in all its relations, even to diffuseness, in his bill or libel, and the answer and defence of the defendant may be made with equal variety and minuteness of detail. Proceedings in this form are utterly unfit for trial by a jury; and accordingly, when material facts are to be settled in chancery, in England, the chancellor ordinarily directs proper issues to be framed and sent for trial to the courts of common law. In the United States, the same course is pursued wherever the equity and common-law jurisdictions are vested in separate tribunals.

1 Stephen on Pleading, pp. 29, 30.

But where the courts of common law are also clothed with chancery powers, if important facts are asserted and denied, which are proper to be tried by a jury, the court, in its discretion, will direct the making up and trial of proper issues at its own bar. In the courts of the States of Continental Europe, where the forms of procedure are derived from the Roman law, the necessity has been universally felt of adopting some method of extracting from the multifarious counter-allegations of the parties the material points in controversy, the decision of which will finally terminate the suit; and various modes have been pursued to attain this necessary object. In the courts of Scotland, where the course of procedure is still by libel and answer, the practice since the recent introduction of trials by jury is for the counsel first to prepare and propose the issues to be tried, and, if these are not agreed to (or, which is more usual, are omitted to be prepared), the clerks frame the issues, which are sent to the Lord Ordinary for his approval. In all these methods, the point for decision is publicly adjusted by a retrospective selection from the pleadings; but, in the more simple and certain method of the common law, the altercations of the parties, being conducted by the established rules of good pleading, will, by the mere operation of these rules, finally and unerringly evolve the true point in dispute in the form of a single proposition.

$ 5. Issues, general and special. Of the issues thus raised, some are termed general issues ; others are special. The general issue is so called, because it is a general and comprehensive denial of the whole declaration, or of the principal part of it. The latter kind of issue usually arises in some later stage of the pleadings, and is so called by way of distinction from the former. The general issue, as will be more distinctly seen in its proper place, puts in controversy the material part of the declaration, and obliges the plaintiff to prove it in each particular. (a) Thus, upon the plea

1 Charles River Bridge v. Warren Bridge, 7 Pick. 344.

(a) In several of the United States the sometimes performed by what is called the defence is now set up by an answer, which specification of defence. See Massachumust deny either in general terms or spe- setts Pub. Stat. c. 167, SS 15, 17, 20. Cali. cifically, all the facts in the plaintiff's fornia : Hittell's Codes, § 437. Georgia : statement of his case which the defendant Code 1882, § 3452. Indiana : Stat. 1876, intends to controvert, and must set forth, p. 60. Iowa: Code 1873, § 2655. Kenin clear and precise terms, each substan- tucky : Bullitt's Codes (Civil), c. iv. p. 22. tive fact intended to be relied on in avoid. Ohio : Rev. Stat. 1880, § 5070. Rhode ance of the action. This latter duty is Island : Pub. Stat. 1882, p. 578.

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