that cause as in other cases; Co. 2d Inst. commencement of the record on appearance 329; Rast. 317; More, 100; 1 B. & P. 121; of the parties. 2 Lilly, Reg. Estrepement; 5 Co. 119; Reg. Brev. 76, 77. In Pennsylvania, by legislative enactment, the remedy by estrepement is extended for the benefit of any owner of lands leased for years or at will, at any time during the continuance or after the expiration of such demise, and due notice given to the tenant to leave the same, agreeably to law; or for any purchaser at sheriff or coroner's sale of lands, etc., after he has been declared the highest bidder by the sheriff or coroner; or for any morgagee or judgment-creditor, after the lands bound by such judgment or mortgage shall have been condemned by inquisition, or which may be subject to be sold by a writ of venditioni exponas or levari facias. See 10 Viner, Abr. 497; Woodf. Landl. & T. 447; Arch. Civ. Pl. 17; 7 Comyns, Dig. 659; 12 Harr. 162; 1 Wr. 260. ET ALIUS (Lat.). And another. The abbreviation et al., sometimes in the plural written et als., is affixed to the name of the first plaintiff or defendant, in entitling a cause, where there are several joined as plaintiffs or defendants. ET CÆTERA (Lat.). And others; and other things. The abbreviation etc. was formerly much used in pleading to avoid the inconveniences attendant upon making full and half defence. See DEFENCE. It is not generally to be used in solemn instruments; see 6 S. & R. 427; when used in pleadings to avoid repetition, it usually refers to things unnecessary to be stated; 27 Ark. 564. ET DE HOC PONIT SE SUPER PATRIAM (Lat.). And of this he puts himself upon the country. The Latin form of concluding a traverse. See 3 Bla. Com. 313. ET HOC PARATUS EST VERIFICARE (Lat.). And this he is prepared to verify. The Latin form of concluding a plea in confession and avoidance; that is, where the defendant has confessed all that the plaintiff has set forth, and has pleaded new matter in avoidance. 1 Salk. 2. ET HOC PETIT QUOD INQUIRATUR PER PATRIAM (Lat.). And this he prays may be inquired of by the country. The conclusion of a plea tendering an issue to the country. 1 Salk. 3. ET INDE PRODUCIT SECTAM (Lat.). And thereupon he brings suit. The Latin conclusion of a declaration, except against attorneys and other officers of the court. 3 Bla. Čom. 295. ET MODO AD HUNC DIEM (Lat.). And now at this day. The Latin form of the ET NON (Lat.). And not. These words are sometimes employed in pleading to convey a pointed denial. They have the same effect as "without this,' absque hoc. Bouvier, Inst. n. 2981, note. 3 And ET SIC AD PATRIAM (Lat.). so to the country. books, to record an issue to the country. A phrase used in the year EUNDO MORANDO ET REDE UNDO (Lat.). This Latin phrase signifies going, remaining, and returning. It is employed in cases where a person is privileged from arrest, in order to give him the freedom necessary to the performance of his respective obligations, to signify that he is protected from arrest eundo morando et redeundo. See 3 Bouvier, Inst. n. 3380. EUNOMY. Equal laws and a well-adjusted constitution of government. EUNUCH. A male whose organs of generation have been so far removed or disorganized that he is rendered incapable of reproducing his species. Domat, liv. prél. tit. 2, s. 1, n. 10. EVASION (Lat. evadere, to avoid). A subtle device to set aside the truth or escape the punishment of the law: as, if a man should tempt another to strike him first, in order that he might have an opportunity of returning the blow with impunity. He is, nevertheless, punishable, because he becomes himself the aggressor in such a case. Hawk. Pl. Cr. c. 31, §§ 24, 25; Bac. Abr. Fraud, A. EVICTION. Depriving a person of the possession of his lands or tenements. Technically, the dispossession must be by judgment of law; if otherwise, it is an ouster. Total eviction takes place when the possessor is wholly deprived of his rights in the premises. Partial eviction takes place when the possessor is deprived of only a portion of them; as, if a third person comes in and ejects him from the possession of half his land, or establishes a right to some easement over it, by a title which is prior to that under which he holds. With respect to the demised premises, an eviction consists in taking from a tenant some part of the premises of which he was in possession, not in refusing to put him in possession of something which by the agreement with his landlord he should have enjoyed; 12 Wend. 529. And in order to effect a suspension of rent there must be something equivalent to an expulsion from the premises, and not a mere trespass, or disturbance in the enjoyment of them; 4 Wend. 505; 5 Sandf. 542; T. Jones, 148; 1 Yerg. 379; 120 Mass. It is not necessary, however, in order to produce the eviction of a tenant, that there should be an actual physical expulsion; for a landlord may do many acts tending to diminish the enjoyment of the premises, short of an 284. EVICTION 611 EVIDENCE expulsion, which will amount to an eviction for the use of the demised premises. Upon in law: as, if he erects a nuisance so near the an eviction the rent ceases, and the lessee is demised premises as to deprive the tenant of thereby relieved from a burden which must be the use of them, or if he otherwise intention- deemed equal to the benefit he would have ally disturbs the tenant's enjoyment to such derived from the continued enjoyment of the an extent as to injure his business or destroy property; 2 Hill, N. Y. 105. And see 1 the comfort of himself and family, it will Du. N. Y. 343; Tayl. Landl. & T. § 317. amount to an eviction; 8 Cow. 727; 2 Ired. 350; 1 Sandf. 260; 4 N. Y. 217. In New York it is said that eviction from the whole premises leased, relieves the tenant from the payment of rent; but when the eviction is from a part only, the rent will be apportioned; 46 N. Y. 370. When the landford's wrongful act interferes more or less with the beneficial enjoyment of the premises, but leaves them intact, the act is merely a trespass, though the tenant suffer injury by it; ibid. : Constructive eviction may arise from any wrongful act of the lessor which deprives the tenant of the full enjoyment of the leased premises as, by forbidding an under-tenant to pay rent to the tenant; 25 Ill. 587; building a fence in front of the premises to cut off the tenant's access thereto; 9 Allen, 421; refusal to do an act indispensably necessary to enable the tenant to carry on the business for which the premises were leased: as, when premises were let for a grog shop, the landlord refused to sign the necessary documents required by statute to enable the tenant to obtain a license: 42 Md. 236. But the doctrine of constructive eviction amounts only to a right to abandon the premises; it is not a defence against an action for rent when the tenant waives the eviction and remains in possession; 20 N. Y. 281. The remedy for an eviction depends chiefly upon the covenants in the deed under which the party held. When the grantee suffers a total eviction, if he has a covenant of seisin or for quiet enjoyment, he recovers from the grantor the consideration-money which he paid for the land, with interest, and not the enhanced value of the premises, whether such value has been created by the expenditure of money in improvements thereon, or by any other more general cause; 14 Wend. 38; 2 Mass. 432. And this seems to be the general rule in the United States; 3 Caines, 111; 13 Johns. 50; 4 Dall. 441; Cooke, 447; 1 Hen. & M. 202; 5 Munf. 415; 4 Halst. 139; 2 Bibb, 272. In Massachusetts, the measure of damages on a covenant of warranty is the value of the land at the time of eviction; 3 Mass. 523; 4 id. 108. See, as to other states, 1 Bay, 19, 265; 3 Des. Eq. 245; 2 M'Cord, 413; 3 Call, 326. With respect to a lessee, however, who pays no purchase-money, the rule of damages upon an eviction is different; for he recovers nothing, except such expenses as he may have been put to in defending his possession; and as to any improvements he may have made upon the premises, he stands upon the same general footing with a purchaser. The rents reserved in a lease, where no other consideration is paid, are regarded as a just equivalent When the eviction is only partial, the damages to be recovered under the covenant of seisin are a ratable part of the original price, and they are to bear the same ratio to the whole consideration that the value of the land to which the title has failed bears to the value of the whole tract. The contract is not rescinded, so as to entitle the vendee to the whole consideration-money, but only to the amount of the relative value of the part lost; 5 Johns. 49; 12 id. 126; 4 Kent, 462. See 6 Bacon, Abr. 44; 1 Saund. 204, note 2, 322 a, note 2. See, generally, Wood, Landl. & T. EVIDENCE. That which tends to prove or disprove any matter in question, or to influence the belief respecting it. Belief is produced by the consideration of something presented to the mind. The matter thus presented, in whatever shape it may come, and through whatever material organ it is derived, is evidence. Prof. Parker, Lectures on Medical Jurisprudence, in Dartmouth College, N. H. The word evidence, in legal acceptation, includes all the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved. 1 Greenl. Ev. c. 1, § 1. That which is legally submitted to a jury, to enable them to decide upon the questions in dispute, or issue, as pointed out by the pleadings, and distinguished from all comment and argument, is termed evidence. 1 Starkie, Ev. pt. 1, § 3. Evidence may be considered with reference to its instruments, its nature, its legal character, its effect, its object, and the modes of its introduction. The instruments of evidence, in the legal acceptation of the term, are: 1. Judicial notice or recognition. There are divers things of which courts take judicial notice, without the introduction of proof by the parties: such as the territorial extent of their jurisdiction, local divisions of their own countries, seats of courts, all public matters directly concerning the general government, the ordinary course of nature, divisions of time, the meanings of words, and, generally, of whatever ought to be generally known in the jurisdiction. If the judge needs information on subjects, he will seek it from such sources as he deems authentic. See 1 Greenleaf, Ev. c. 2; Steph. Ev. art. 58. 2. Public records; the registers of official transactions made by officers appointed for the purpose: as, the public statutes, the judg ments and proceedings of courts, etc. 3. Judicial writings: such as inquisitions, depositions, etc. 4. Public documents having a semi-official commission of a crime until he is proved to character: as, the statute-books published be guilty. So, the existence of a person, or under the authority of the government, docu- of a particular state of things, being shown, ments printed by the authority of congress, the law presumes the person or state of things to continue until something is offered to conflict with the presumption. See Best, Presumption, ch. ii. etc. 5. Private writings: as, deeds, contracts, wills. 6. Testimony of witness. 7. Personal inspection, by the jury or tribunal whose duty it is to determine the matter in controversy: as, a view of the locality by the jury, to enable them to determine the disputed fact, or the better to understand the testimony, or inspection of any machine or weapon which is produced in the cause. But the presumption of life may be rebutted by another presumption. Where a party has been absent from his place of residence for the term of seven years, without having been heard of, this raises a presumption of his death, until it is encountered by some evidence showing that he is actually alive, or was so within that period. There are rules prescribing the limits and Presumptions of fact are not the subject regulating the use of these different instru- of fixed rules, but are merely natural prements of evidence, appropriate to each class. sumptions, such as appear, from common exIn its nature, evidence is direct, or pre-perience, to arise from the particular circumsumptive, or circumstantial. Direct evidence is that means of proof which tends to show the existence of a fact in question, without the intervention of the proof of any other fact. It is that evidence which, if believed, establishes the truth of a fact in issue, and does not arise from any presumption. Evidence is direct and positive when the very facts in dispute are communicated by those who have the actual knowledge of them by means of their senses. 1 Phill. Ev. 116; 1 Stark. Ev. 19. In one sense, there is but little direct or positive proof, or such proof as is acquired by means of one's own sense; all other evidence is presumptive; but, in common acceptation, direct and positive evidence is that which is communicated by one who has actual knowledge of the fact. Presumptive evidence is that which shows the existence of one fact, by proof of the existence of another or others, from which the first may be inferred; because the fact or facts shown have a legitimate tendency to lead the mind to the conclusion that the fact exists which is sought to be proved. Presumptive evidence has been divided into presumptions of law and presumptions of fact. Presumptions of law, adopted from motives of public policy, are those which arise in certain cases by force of the rules of law, directing an inference to be drawn from proof of the existence of a particular fact or facts. stances of any case. Some of these are "founded upon a knowledge of the human character, and of the motives, passions, and feelings by which the mind is usually influenced." 1 Stark. Ev. 27. They may be said to be the conclusions drawn by the mind from the natural connection of the circumstances disclosed in each case, or, in other words, from circumstantial evidence. Circumstantial evidence is sometimes used as synonymous with presumptive evidence; but presumptive evidence is not necessarily and in all cases what is usually understood by circumstantial evidence. The latter is that evidence which tends to prove a disputed fact by proof of other facts which have a legitimate tendency, from the laws of nature, the usual connection of things, the ordinary transaction of business, etc., to lead the mind to a conclusion that the fact exists which is sought to be established. See 1 Stark. Ev. 478. Presumptive evidence may sometimes be the result, to some extent, of any arbitrary rule-as in the case of the presumption of death after an absence of seven years without being heard of-derived by analogy from certain statutes. The jurists and the jury draw conclusions from circumstantial evidence, and find one fact from the existence of other facts shown to them,-some of the presumptions being so clear and certain that they have become fixed as rules of law, and others having greater or less weight according to the circumstances of the case, leaving the matter of fact inquired about in doubt until the proper tribunal to determine the question draws the con They may be conclusive or inconclusive. Conclusive presumptions are those which admit of no averment or proof to the contrary. Thus, the records of a court, except in some proceeding to amend them, are conclusion. clusive evidence of the matter there recorded being presumed to be rightly made up. Inconclusive or disputable presumptions of law are those where a fact is presumed to exist, either from the general experience of mankind, or from policy, or from proof of the existence of certain other facts, until something is offered to show the contrary. Thus, the law presumes a man to be sane until the contrary appears, and to be innocent of the In its legal character, evidence is primary or secondary, and primâ facie or conclusive. Primary evidence. The best evidence, or that proof which most certainly exhibits the true state of facts to which it relates. The law requires this, and rejects secondary or inferior evidence when it is attempted to be substituted for evidence of a higher or superior nature. For example, when a written contract has been entered into, and the object EVIDENCE is to prove what it was, it is requisite to produce the original writing, if it is to be attained; and in that case no copy or other inferior evidence will be received. 613 EVIDENCE evidence, without further showing, may be given to prove the contents of such papers, and notice to produce them is unnecessary; 20 Wall. 125. This is a rule of policy, grounded upon a It has been decided in England that there reasonable suspicion that the substitution of are no degrees in secondary evidence; and inferior for better evidence arises from sinister when a party has laid the foundation for such motives, and an apprehension that the best evidence, he may prove the contents of a deed evidence, if produced, would alter the case by parol, although it appear that an attested to the prejudice of the party. This rule copy is in existence; 6 C. & P. 206; 8 id. relates not to the measure and quantity of 389; 7 M. & W. 102; but the question is evidence, but to its quality when compared not settled in the United States; Greenl. Ev. with some other evidence of superior degree. § 84, note; and the U. S. supreme court, To this general rule there are several ex-after saying they do not adopt the English ceptions. 1. As it refers to the quality rather rule, observe that the rule of exclusion or than to the quantity of evidence, it is evident admission must be so applied as to promote that the fullest proof that every case admits the ends of justice, and guard against fraud, of is not requisite: if, therefore, there are surprise, and imposition; 20 Wall. 226. several eye-witnesses to a fact, it may be sufficiently proved by one only. 2. It is not always requisite, when the matter to be proved has been reduced to writing, that the writing should be produced: as, if the narrative of a fact to be proved has been committed to writing, it may yet be proved by parol evidence. A receipt for the payment of money, for example, will not exclude parol evidence of payment; 4 Esp. 213. And see 7 B. & C. 611; 1 Campb. 439; 3 B. & Ald. 566; 3 Cra. C. C. 51; 1 Dak. 372; 78 N. Y. 82. Secondary evidence. That species of proof which is admissible when the primary evidence cannot be produced, and which becomes by that event the best evidence that can be adduced; 3 Yeates, 530. Prima facie evidence is that which appears to be sufficient proof respecting the matter in question, until something appears to controvert it, but which may be contradicted or controlled. Conclusive evidence is that which establishes the fact: as in the instance of conclusive presumptions. Evidence may be conclusive for some purposes but not for others. decision is not, strictly speaking, evidence. But the terms incompetent evidence and inadmissible evidence are often used to designate what is not to be heard as evidence: as, witnesses are spoken of as competent or incompetent. Admissibility of evidence. In considering the legal character of evidence, we are naturally led to the rules which regulate its competency and admissibility, although it is not precisely accurate to say that evidence is in its legal character competent or incompetent; because what is incompetent for the considBut before such evidence can be allowed iteration of the tribunal which is to pronounce the must be clearly made to appear that the superior evidence is not to be had. The person who possesses it must be applied to, whether he be a stranger or the opposite party in the case of a stranger, a subpoena and attachment, when proper, must be taken out and served; and in the case of a party, notice to produce As the common law excludes certain classes such primary evidence must be proved before of persons from giving testimony in particular the secondary evidence will be admitted; 7 cases, because it deems their exclusion conduS. & R. 116; 4 Binn. 295, note; 6 id. 228, cive, in general, to the discovery, of the truth, 478; 7 East, 66; 8 id. 278; 3 B. & Ald. so it excludes certain materials and statements 296; 61 Penn. 328; 7 Exch. 639. After from being introduced as testimony in a cause, proof of the due execution of the original, for a similar reason. Thus, as a general rule, the contents should be proved by a counter-it requires witnesses to speak to facts within part, if there be one, for this is the next best their own knowledge, and excludes hearsay evidence; and it seems that no evidence of a evidence. mere copy is admissible until proof has been given that the counterpart cannot be produced; 6 Term, 236. If there be no counterpart, a copy may be proved in evidence by any witness who knows that it is a copy, from having compared it with the original. Bull. N. P. 254; 1 Kebl. 117; 6 Binn. 234; 2 Taunt. 52; 1 Campb. 469; 8 Mass. 273. If regularly recorded, an office copy may be given in evidence. If there be no copy, the party may produce an abstract, or even give parol evidence of the contents of a deed. 10 Mod. 8; 6 Term, 556. If books or papers necessary as evidence in the courts of one state be in the possession of a person living in another state, secondary Hearsay is the evidence, not of what the witness knows himself, but of what he has heard from others. Such mere recitals or assertions cannot be received in evidence for many reasons, but principally for the following:-first, that the party making such declarations is not on oath; and, secondly, because the party against whom it operates has no opportunity of cross-examination. 1 Phill. Ev. 185. See, for other reasons, 1 Stark. Ev. pt. 1, p. 44. The general rule excluding hearsay evidence does not apply to those declarations to which the party is privy, or to admissions which he himself has made. Admissions are the declarations which a ་ party by himself, or those who act under his authority, make of the existence of certain facts. See ADMISSION. A statement of all the distinctions between what is to be regarded as hearsay and what is to be deemed original evidence would extend this article too far. The general principle is that the mere declaration, oral or written, of a third person, as to a fact, standing alone, is inadmissible. Res gesta. But where evidence of an act done by a party is admissible, his declarations made at the time, having a tendency to elucidate or give a character to the act, and which may derive a degree of credit from the act itself, are also admissible, as part of the res gesta; 9 N. H. 271; 93 U. S. 465. So, declarations of third persons, in the presence and hearing of a party, and which tend to affect his interest, may be shown in order to introduce his answer or to show an admission by his silence, but this species of evidence must be received with great caution; 1 Greenl. Ev. 236. Confessions of guilt in criminal cases come within the class of admissions, provided they have been voluntarily made and have not been obtained by the hope of favor or by the fear of punishment. And if made under such inducements as to exclude them a subsequent declaration to the same effect, made after the inducement has ceased to operate, and having no connection with the hopes or fears which have existed, is admissible as evidence. 17 N. H. 171. There is, however, a growing unwillingness to rest convictions on confessions unless supported by corroborating circumstances, and in all cases there must be at least proof of the corpus delicti, independent of the confession; 1 Whart. Cr. Law, $683; Cooley, Const. Lim. 385. See ADMISSIONS; CONFESSION. as also questions which depend upon the exercise of particular skill and judgment. Such facts, some from their nature, and others from their antiquity, do not admit of the ordinary and direct means of proof by living witnesses; and, consequently, resort must be had to the best means of proof which the nature of the cases affords. See BOUNDARY; CUSTOM; OPINION; PEDIGREE; PRESCRIP TION. Consult Greenleaf, Starkie, Wharton, Stephen, Phillips, Evidence; Best, Presumption. The effect of evidence. As a general rule, a judgment rendered by a court of competent jurisdiction directly upon a point in issue is a bar between the same parties; 1 Phill. Ev. 242; and privies in blood, as an heir; 3 Mod. 141, or privies in estate, 1 Ld. Raym. 730; Bull. N. P. 232, stand in the same situation as those they represent: the verdict and judgment may be used for or against them, and is conclusive. See RES JUDICATA. The constitution of the United States, art. 4, s. 1, declares that "full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And congress may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof." See AUTHENTICATION; 7 Cra. 408, 481; 9 id. 192; 3 Wheat. 234; 10 id. 469; 17 Mass. 546; 2 Yeates, 532; 3 Bibb. 369; 2 Marsh. 293; 5 Day, 563. As to the effect of foreign laws, see FOREIGN LAWS. For the force and effect of foreign judgments, see FOREIGN JUDGMENTS. The object of evidence is next to be considered. It is to ascertain the truth between the parties. It has been discovered by experience that this is done most certainly by the adoption of the following rules, which are now binding as law:-1. The evidence must Dying declarations are an exception to the be confined to the point in issue. 2. The rule excluding hearsay evidence, and are ad- substance of the issue must be proved; but mitted, under certain limitations in cases of only the substance is required to be proved. homicide, so far as the circumstances attend- 3. The affirmative of the issue must be proved. ing the death and its cause are the subject of It is a general rule, both in civil and crimithem. See DECLARATION; DYING DECLA-nal cases, that the evidence shall be confined to the point in issue. Justice and conveniOpinions of persons of skill and experience, ence require the observance of this rule, parcalled experts, are also admissible in certain ticularly in criminal cases; for when a pricases, when, in order to the better understand-soner is charged with an offence it is of the ing of the evidence or to the solution of the utmost importance to him that the facts laid question, a certain skill and experience are before the jury should consist exclusively of required which are not ordinarily possessed the transaction which forms the subject of the by jurors. indictment, and which alone he has come preIn several instances proof of facts is ex-pared to answer. 2 Russ. Cr. 694; 1 Phill. cluded from public policy; as professional Ev. 166. communications, secrets of state, proceedings of grand jurors, and communications between husband and wife. RATIONS. Many facts, from their very nature, either absolutely or usually exclude direct evidence to prove them, being such as are either necessarily or usually imperceptible by the senses, and therefore incapable of the ordinary means of proof. These are questions of pedigree or relationship, character, prescription, custom, boundary, and the like; To this general rule there are several exceptions, and a variety of cases which do not fall within the rule. In general, evidence of collateral facts is not admissible; but when such a fact is material to the issue joined between the parties, it may be given in evidence: as, for example, in order to prove that the acceptor of a bill knew the payee to be a fictitious person, or that the drawer had general authority from him to fill up bills with the name of a fictitious payee, evidence may be |