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class of exceptions which were said not to be evidence, formed substantially the body of the law of evidence at common law. But to the question, what is evidence, the law had no answer. It could only point to a list of facts which were said not to be evidence, and at a later stage to numerous exceptions to the list. The law of evidence assumed its conventional form from its negative side, and while many of its rules have come to be expressed in an affirmative form, they will be found to be exceptions to comprehensive negative rules. The absence from our law of evidence of any general affirmative rule, declaring what evidence is, or what constitutes relevancy, has been always felt to be a serious disadvantage to the practitioner in acquiring a grasp on this branch of the law. The great significance of formulating the whole law of evidence in an affirmative form, would appear, from these reflections, and from the experience of judges and lawyers, plainly evident.

The main divisions of this Code are similar to those of the Indian Evidence Act and Stephen's Digest of the Law of Evidence. Those works are based on the classification of the body of the law proposed by Bentham and Austin, and also followed by the authors of the Codes prepared for this state pursuant to the constitution of 1846. By this classification the body of the law is divided (1), into substantive law which defines rights and duties; (2), adjective law or the law of procedure, by means of which substantive law is applied to particular cases. The law of procedure includes (a), the law of pleading, by which is ascertained the question in dispute between parties; (b), the law of evidence which determines what facts may be proved, how facts may be proved, and by whom and in what manner facts may be proved; (c), rules for the conduct of the proceedings and for bringing before the court the persons, documents and things by which these facts are to be proved.

The portion of the law of evidence embodied in this Code is that branch described in subdivision (b), namely, that which determines what facts may be proved; how they may be proved, by whom and in what manner they may be proved. That branch

of the law of evidence described in sub-division (c) which provides for the conduct of the proceedings and for bringing before the court the persons, documents and things by which facts are to be proved, is not included in this Code. It was contained in the Code of Civil Procedure reported complete to the Legļslature in 1852, and together with much of what is now included in this Code formed Part IV of that report, and which was substantially a Code of Evidence. All of that portion of the law of evidence described in sub-division (c) above is now contained in the Codes of Civil and Criminal Procedure and special statutes where it properly belongs.

The first Title of this Code determines, (1), what facts may be proved. Such facts are of two classes : (1), facts in issue, and (2), facts relevant to the issue. Facts in issue are defined in Section sixteen of the Preliminary Chapter. Facts relevant to the issue are defined, first, in the logical meaning of the term in Sections seventeen and sixty-six, and, second, their specific enumeration in accordance with the decisions and the statutes of the state, comprise the first title with the exception of Section twenty-two.

The second Title relates to proof, and determines how facts are to be proved. Under this Title is placed also an enumeration of facts which need not be proved. The third Title determines by whom facts are to be proved, and in what manner.

The second and third Titles include many provisions which are logically subordinate to the general Titles. But, in some instances the logical relation of such provisions to the Title in which they are placed is not pronounced, and the arrangement, therefore, has been dictated by considerations of convenience of reference.

The body of the Code is prefaced by a Preliminary Chapter containing the names of its general divisions, its definitions and the qualifications as to the sense in which certain terms are used, and the general application of its provisions. The convenience following from placing this Preliminary Chapter at the beginning, it is thought by the Commissioners, will recommend it to the practitioner. It has in its defense the high authority of Lord Macaulay in drafting the Indian Penal Code. The following plan exhibits the distribution and arrangement of the subject as embraced within the provisions of this Code :







CHAPTER I.-Facts which Need not be Proved.
CHAPTER II.-Oral Evidence.
CHAPTER III.-Public Writings.

CHAPTER IV.-Public Records of Private Writings, including Conveyances of Real Property.

CHAPTER 7.-Judicial Records and Entries.

CHAPTER VI.- Official Certificates and Miscellaneous Provisions.

CHAPTER VII.-Proof of Writings.
CHAPTER VIII.—Evidence of the Contents of a Writing.

CHAPTER IX.-Oral Evidence to explain Contents of a Writing

CHAPTER X.-Construction of a Writing.
CHAPTER XI.-Effect of Judgments and Orders.



CHAPTER I.-Production of Evidence.
CHAPTER II.-Indisputable Evidence.
CHAPTER III.-Presumptions.
CHAPTER IV.-Witnesses.

CHAPTER V.-Examination of witnesses and General Provisions.

CHAPTER VI.-Repealing Clause.

In treating the subject of proof of public writings and official certificates, the Commissioners were confronted with a question of some embarrassment. They found that forty-one sections of the Code of Civil Procedure dealt with the same subject. To have omitted them would have left that subject imperfectly and fragmentarily treated in this Code, and, certainly being far from receiving adequate treatment in the Code of Civil Procedure, the Commissioners decided to place all the provisions relating to the proof of public writings, public records of private writings, and official certificates contained in the Code of Civil Procedure and other statutes, in this Code. All the sections of the Code of Civil Procedure, forming Titles IV. and V., are therefore repealed and embodied in this Code, without change, only as regards a compression of some sections which seemed prolix. Some, which include a number of different subjects, have been divided into two or more sections.

In treating the subject of witnesses the same embarrassment also presented itself, as fourteen sections of the Code of Civil Procedure partially dealt with that subject. The Commissioners have embodied those sections in this Code, without change in the legal effect of their provisions, though some changes in phraseology and a division of some sections, which seemed somewhat involved, into two or more, have been made. The advantage of having all provisions relating to one subject arranged in one volume in a consecutive and natural order, the Commissioners believe, will amply justify their course.

Those sections contained in the Revised Statutes relating to the proof of writings and records, filed and kept with the Secretary of State, Comptroller, State Engineer, Surveyor, State Treasurer and County Clerks are incorporated in this Code, with such recasting of their form as was necessary to mould them to agreement with the formal character essential to a Code. Any intentional change in their legal effect has been avoided. Those sections of various Acts of the Legislature providing for the proof of writings filed or recorded in the public offices of the state, respecting subscribing witnesses, and the proof of handwriting by comparison, are also incorporated in this Code, with some verbal changes not intended to affect their legal character. It is believed that for the first time the lawyer will find all the provisions of the statutes respecting the mode of proving public writings, collected together in one volume, arranged in a natural and convenient order, and expressed with reasonable perspicuity and brevity.

One class of writings, that is, certificates of incorporation of associations, companies, corporations, clubs and societies is not included in this Code. The different statutes providing for their incorporation also provide for proving such certificates, and declare, in most cases, their legal effect as matters of evidence. The Commissioners have not deemed it desirable to embody such provisions in this Code, as they are convenient for reference in the general statutes where they occur, and which are almost necessarily consulted in actions and proceedings in which such certificates may be necessary as evidence.

In dealing with the question of presumptions, the Commissioners have omitted what are known to the law as “indisputable presumptions” or the “presumptiones juris et de jure " of the Civil Law. As a common law rule of evidence they have practically disappeared, and linger only in occasional statutes, which are unaffected by this Code. The whole course of modern law has been unfavorable to their continuance. The reasons which called them into existence and justified them are supplanted by statutes of limitations, and no grounds remain why they should longer haunt the footsteps of judges and of lawyers.

Professor Wharton says, “ While the name is still used there are no perfect individuals of the class to be found.” They were abolished in Livingston's Code of Evidence; they have no place in Stephen's Digest of the Law of Evidence or in the Indian Evidence Act. Best says, “On the whole, modern courts of justice are slow to recognize presumptions as irrebuttable, and are disposed rather to restrict than extend their number.”

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