Blacks Law Dict. 1st ed

EVIDENCE

441

EVICTION

bill of exceptions, the general term covering all species should be used in the statement as to its embracing the evidence, not the term "testimony," which is satisfied if the bill only contains all of that species of evidence. The statement that all the testimony is in the record may, with reference to judicial records, properly be termed an "affirma tive pregnant." 60 Ind. 157. The word "proof" seems properly to mean any thing which serves, either immediately or medi ately, to convince the mind of the truth or false hood of a fact or proposition. It is also applied to the conviction generated in the mind by proof properly so called. The word " evidence " signifies, in its original sense, the state of being evident, i. e.. plain, apparent, or notorious. But by an almost peculiar inflection of our language, it is applied to that which tends to render evident or to generate proof. Best, Ev. §§ 10,11. Classification. There are many species of evidence, and it is susceptible of being classi fied on several different principles. The more usual divisions are here subjoined. Evidence is either judicial or extra judicial* Judicial evidence is the means, sanctioned by law, of ascertaining in a judicial proceeding the truth respecting a question of fact, (Code Civil Proc. Cal. § 1823;) while extrajudicial evidence is that which is used to satisfy pri vate persons as to facts requiring proof. Evidence is either primary or secondary. Primary evidence is that kind of evidence which, under every possible circumstance, af fords the greatest certainty of the fact in question. Thus, a written instrument is itself the best possible evidence of its exist ence and contents. Secondary evidence is that which is inferior to primary. Thus, a copy of an instrument, or oral evidence of its contents, is secondary evidence of the instru ment and contents. Code Civil Proc. Cal. §§ 1829, 1830. Primary evidence is such as in itself does not indicate the existence of other and better proof. Secondary evidence is such as from necessity in some cases is substituted for stronger and better proof. Code Ga. 1882, § 3761. Primary evidence is that particular means of proof which is indicated by the nature of the fact under investigation, as the most natural and sat isfactory; the best evidence the nature of the case admits; such evidence as may be called for in the first instance, upon the principle that its non-pro duction gives rise to a reasonable suspicion that if produced it would tend against the fact alleged. Abbott. Evidence is either direct or indirect. Di rect evidence is that which proves the fact in dispute directly, without an inference or pre sumption, and which in itself, if true, con clusively establishes that fact; for example, if the fact in dispute be an agreement, the evidence of a witness who was present and witnessed the making of it is direct. Indi

Eviction is the loss suffered by the buyer of the totality of the thing sold, or of a part thereof, occasioned by the right or claims of a third person. Civil Code La. ait. 2500. EVIDENCE. Any species of proof, or probative matter, legally presented at the trial of an issue, by the act of the parties and through the medium of witnesses, records, documents, concrete objects, etc., for the pur pose of inducing belief in the minds of the court or jury as to their contention. The word "evidence," in legal acceptation, in cludes all the means by which any alleged matter of fact, the truth of which is submitted to investi gation, is established or disproved. 1 Greenl. Ev. c 1, $ 1. That which is legally submitted to a jury, to en able them to deoide upon the questions in dispute or issue, as pointed out by the pleadings, and dis tinguished from all comment and argument, is termed "evidence. n 1 Starkie, Ev. pt. 1, § 8. Synonyms distinguished. The term "evidence" is to be carefully distinguished from its synonyms "proof" and "testimony." "Proof" is the logically sufficient reason for assenting to the truth of a proposition ad vanced. In its juridical sense it is a term of wide import, and comprehends everything that may be adduced at a trial, within the legal rules, for the purpose of producing con viction m the mind of judge or jury, aside from more argument; that is, everything that has a probative force intrinsically, and not merely as a deduction from, or combination of, original probative facts. But "evidence" is a narrower term, and includes only such kinds of proof as may be legally presented at a trial, by the act of the parties, and through the aid of such concrete facts as witnesses, records, or other documents. Thus, to urge a presumption of law in support of one's case is adducing proof, but it is not offering evi dence. " Testimony," again, is a still more re sti icted term. It properly means only such ev idence as is delivered by a witness on the trial of a cau se, either orally or in the form of affi davits or depositions. Thus, an ancient deed, when offered under proper circumstances, is evidence, but it could not strictly be called "testimony." "Belief" is a subjective condi tion resulting from proof. It is a conviction of the truth of a proposition, existing in the mind, and induced by persuasion, proof, or argument addressed to the judgment. The bill of exceptions states that all the "testi mony" is in the record; but this is not equivalent to a statement that all the "evidence" is in the record. Testimony is one species of evidence. But the word "evidence" is a generic term which includes every species of it And, in a

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